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Schillinger v. Schwochert

United States District Court, E.D. Wisconsin

December 27, 2016

DANIEL A. SCHILLINGER, Petitioner,
v.
JAMES SCHWOCHERT, Respondent.

          ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION (DKT. NO. 31), AND DISMISSING PETITION

          HON. PAMELA PEPPER United States District Judge.

         BACKGROUND

         In 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.

         A. The Federal Habeas Petition

         The 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”[1]when the jury indicated that it had voted four times without reaching a unanimous verdict. Dkt. No. 32 at 4.

         On 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.

         B. The Motion for a New Trial

         Documents 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.”[2]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.

         On 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.

         C. The Knight Petition

         Meanwhile, 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.

         On 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.

         D. The Petition for Supreme Court Review

         The 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.

         The 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.

         So-the 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.

         The 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.

         E. The Resumption of the ...


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