United States District Court, E.D. Wisconsin
DANIEL A. SCHILLINGER, Petitioner,
JAMES SCHWOCHERT, Respondent.
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
PETITION (DKT. NO. 31), AND DISMISSING PETITION
PAMELA PEPPER United States District Judge.
April 2009, a jury convicted petitioner Daniel Schillinger in
Wood County Circuit Court of one count of first-degree sexual
assault of a child without great bodily harm. Dkt. 32-1 at 1.
Three months later, the Wood County Circuit Court sentenced
the petitioner to thirteen years of confinement, followed by
seven years on extended supervision. Id.
The Federal Habeas Petition
petitioner filed his federal petition pursuant to 28 U.S.C.
§2254 on March 29, 2013. Dkt. No. 1. The petition raised
six grounds: (1) that the trial court erred by admitting a
detective's testimony stating that sexual assault
suspects more commonly deny accusations than admit guilt; (2)
that the petitioner's trial counsel was ineffective for
failing to object to inadmissible testimony; (3) that his
trial counsel was ineffective in failing to introduce
evidence of a divorce and custody dispute between the
petitioner and the victim's mother; (4) that his trial
counsel was ineffective for misadvising the trial court on
how to answer the jury's question concerning who
initiated the charge; (5) that the trial court erred by
instructing the jury that the issue of who initiated the
charge against the petitioner was “of no consequence to
guilt or innocence;” and (6) that the trial court erred
by giving an “Allen
instruction”when the jury indicated that it had voted
four times without reaching a unanimous verdict. Dkt. No. 32
April 9, 2013, Judge Griesbach (then assigned to the case)
issued a screening order; two of the petitioner's six
claims survived. Dkt. Nos. 4, 28. The court determined that
the Sixth Amendment ineffective assistance of counsel
argument based on counsel's failure to introduce divorce
records as a reason witnesses might have been biased (ground
three), and the claim that the trial court erred in giving an
Allen charge in response to the jury's question
about what to do if they couldn't agree (ground six)
could proceed after the plaintiff exhausted these claims in
state court. Id. The court stayed the federal
proceedings to allow the petitioner to exhaust those claims
in state court. Id.
The Motion for a New Trial
attached to the respondent's brief in support of the
motion to dismiss indicate that at some point in 2013, the
petitioner filed what the Wood County Circuit Court
characterized as “an apparent motion for a new
trial.”Dkt. No. 32-14 at 14. On November 19, 2013,
the court denied that motion. Dkt. No. 32-14 at 14. The trial
court characterized the petitioner's post-conviction
motion as “a rant delineating a number of reasons why
[the petitioner] is mad about his current situation.”
Id. The court did not specifically mention the
petitioner's claim that his trial counsel was ineffective
for failing to introduce divorce and custody records to
demonstrate witness bias, but the judge did state that the
petitioner's ineffective assistance claims “do not
appear to raise any prima facie issue showing either of these
attorneys to be ineffective.” Id. As to the
petitioner's claim regarding the Allen charge,
the court quoted what the petitioner had said in the motion,
then stated that none of the allegations in the motion gave
“rise to the Court believing [the petitioner] received
ineffective of counsel at his trial or for his appeal.”
Id. at 15. The court concluded that because the
motion “raise[d] no understandable issue the Court can
act on, the Motion is Denied.” Id.
November 17, 2015, the Wisconsin Court of Appeals for
District IV summarily affirmed the circuit court's
ruling. State of Wisconsin v. Daniel A. Schillinger,
2014AP152, Dkt. No. 32-15 at 3. With regard to the failure to
introduce evidence regarding divorce and custody, the
appellate court found that the petitioner had not
sufficiently developed the argument, “as to either the
facts or the law, ” and declined to address it.
Id. at 2. The appellate court did not address the
Allen charge claim. Id. The petitioner did
not file a petition for review with the Wisconsin Supreme
Court. Dkt. No. 32-16.
The Knight Petition
in May 2015, the petitioner filed in the District IV Court of
Appeals a post-conviction motion under State v.
Knight, 168 Wis.2d 509 (Wis. 1992). State of
Wisconsin v. Daniel A. Schillinger, 2015AP878, Dkt. No.
32-9. (A Knight petition allows a defendant to
allege ineffective assistance of his appellate counsel.) In
the Knight petition, the petitioner argued that he
was denied effective assistance of trial counsel, that his
trial counsel “initiated the Allen Charge, ” and
that his appellate counsel failed to raise these issues,
prejudicing the outcome of the appeal of his conviction.
Id. at 5.
November 12, 2015 (five days before the Court of Appeals
issued its order affirming the circuit court's denial of
the petitioner's motion for a new trial), the Wisconsin
Court of Appeals denied the Knight petition, finding
that the petitioner did not “develop a coherent
argument explaining why the Allen charge was
improper” and failed to sufficiently develop the
arguments that his trial counsel was ineffective. Dkt. No.
32-10 at 2.
The Petition for Supreme Court Review
petitioner filed a petition for review with the Wisconsin
Supreme Court. Dkt. No. 32-11. The date he typed on this
petition was December 16, 2015. Id. at 1. The case
number he typed on the petition was 2015AP00878, which is the
case number the Court of Appeals assigned to his
Knight petition. Id. But the
caption of the petition reads “Petition for
Review of a Decision of The Wisconsin Court of Appeals,
District IV Dated November 17, 2015”-the date of the
Court of Appeals' order affirming the trial court's
denial of his motion for a new trial. Id.
petitioner attached two documents to his Supreme Court
petition for review: a copy of the Court of Appeals'
November 17, 2015 order affirming the circuit court's
denial of his motion for a new trial, dkt. no. 32-11 at 24,
and a copy of the Wisconsin Court of Appeals' November
12, 2015 order denying his Knight petition, dkt. no.
32-11 at 26.
petition for review bore the case number for the
petitioner's Knight petition, and the date of
the appellate decision in his Wood County motion for a new
trial, and the petitioner attached copies of both orders to
the petition for review. It appears that perhaps the
petitioner thought he could seek review of both orders in the
same petition for review.
Wisconsin Supreme Court, however, interpreted the petition as
a petition to review the denial of the Knight
petition-the December 12, 2015 decision in case number
2015AP878. Dkt. No. 32-12 at 1. The Court found that
“[m]ore than 30 days ha[d] passed from the issuance of
the court of appeals' decision of November 12,
2015.” Id. Because “[p]etitions for
review must be physically filed with the clerk of the supreme
court within 30 days of the date of the court of appeals'
decision or within 30 days of the court of appeals'
decision on a timely motion for consideration, ” the
Supreme Court dismissed the petition as untimely under
Wis.Stat. §808.10. Id.
The Resumption of the ...