United States District Court, E.D. Wisconsin
SHAWN J. SENKBEIL, Petitioner,
TIMOTHY DOUMA, Warden, New Lisbon Correctional Institution, Respondent.
DECISION AND ORDER
ADELMAN District Judge
Senkbeil, who is incarcerated at New Lisbon Correctional
Institution pursuant to a judgment of a Wisconsin court,
filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. The respondent has moved to dismiss the petition
on two grounds: that it does not present a cognizable federal
claim, and that any federal claim it might present has been
2013, the petitioner was charged with first-degree sexual
assault of a child under sixteen by use or threat of force or
violence. This offense was punishable by a mandatory minimum
sentence of 25 years' initial confinement. On September
11, 2013, the petitioner entered a guilty plea to a lesser
charge, second-degree sexual assault of a child, which did
not carry a mandatory minimum. The plea took the form of an
“Alford plea, ” in which the petitioner
pleaded guilty but did not admit that he was guilty. See
North Carolina v. Alford, 400 U.S. 25 (1970). The state
trial court in Sheboygan County accepted the plea and found
the petitioner guilty.
two weeks later, and prior to sentencing, the petitioner
moved to withdraw his plea. Under Wisconsin law, a trial
court should allow a defendant to withdraw a plea prior to
sentencing for any “fair and just reason, ” so
long as the prosecution will not be substantially prejudiced.
State v. Bollig, 232 Wis.2d 561, 577 (2000).
“Fair and just” means some adequate reason for
the defendant's change of heart other than the desire to
have a trial or belated misgivings about the plea. State
v. Jenkins, 303 Wis.2d 157, 177 (2007). Acceptable
reasons include a genuine misunderstanding of the
consequences of the plea, haste and confusion in entering the
plea, coercion by trial counsel, and an assertion of
innocence. State v. Shanks, 152 Wis.2d 284, 290 (Ct.
App. 1989). However, “an assertion of innocence and a
prompt motion to withdraw are not in themselves fair and just
reasons for a plea withdrawal, but are factors that bear on
whether the defendant's proferred reason of
misunderstanding, confusion or coercion are credible.”
State v. Shimek, 230 Wis.2d 730, 740 n.2 (Ct. App.
support of his motion to withdraw his plea, the petitioner
reasserted his innocence and explained that, when he entered
the plea, he was light headed, had not slept or eaten much in
the four days before he pleaded guilty, was confused by his
family members' conflicting advice about pleading guilty,
and was overcome with stress caused by the possibility of
receiving the mandatory minimum. The trial court held a
hearing on the motion and then denied it. The court found
that the original plea colloquy was proper and that the
petitioner had knowingly, voluntarily, and intelligently
entered the plea. The court rejected the petitioner's
contention that, at the time of the plea, he was confused and
suffering from undue stress. The court concluded that the
petitioner had not shown a fair and just reason for
withdrawing the plea. The petitioner then filed a motion with
the trial court to reconsider its decision, and the trial
court denied that motion.
he was sentenced, the petitioner appealed, arguing that the
trial court erred in concluding that the petitioner had not
shown a fair and just reason for withdrawing the plea. The
petitioner did not argue that the trial court's ruling on
the motion deprived him of any rights secured by the U.S.
Constitution or another federal law. The Wisconsin Court of
Appeals affirmed. It noted that the trial court rejected the
petitioner's contention that he was confused or suffering
from extreme stress when he pleaded guilty, and that the
petitioner had failed to show a fair and just reason for
withdrawing the plea. The court of appeals also wrote the
following passage, which seems to form the basis for the
petitioner's claim in his federal petition:
Senkbeil returns to his assertion of innocence and reminds us
of his “swift change of heart.” Maintaining
one's innocence is less compelling in an Alford
plea situation where such a claim is intrinsic to the plea.
Further, an assertion of innocence and a prompt motion to
withdraw are but factors for the circuit court to consider in
evaluating the motion; they are not themselves fair and just
reasons for plea withdrawal. State v. Shimek, 230
Wis.2d 730, 740 n.2 (Ct. App. 1999).
State v. Senkbeil, No. 2014AP562-CR, slip op. at 3-4
(Wis. Ct. App. Oct. 22, 2014).
filed a petition for review in the Wisconsin Supreme Court.
In that petition, Senkbeil argued that the court of appeals
misapplied the “fair and just reason” standard
for withdrawing guilty pleas by finding that the factor of
maintaining one's innocence is less compelling in the
context of an Alford plea. Senkbeil did not raise
any federal claim or federal issue in the petition for
review. The Wisconsin Supreme Court denied the petition.
federal petition, Senkbeil asserts one claim: that the
Wisconsin courts deprived him of due process under the
Fourteenth Amendment when they discounted the factor of
maintaining one's innocence in the course of determining
that he had not shown a fair and just reason for withdrawing
his guilty plea. Senkbeil's argument is that the
Wisconsin courts essentially created a different standard,
which is more difficult to meet, for a defendant who wishes
to withdraw an Alford plea as opposed to a straight
guilty plea or a no-contest plea. The respondent has moved to
dismiss this claim, arguing that it does not raise a federal
issue and therefore is not cognizable on habeas corpus
review. In the alternative, the respondent argues that the
petitioner failed to exhaust any federal claim he might have
by fairly presenting it to the state courts during his direct
appeal, and that therefore any such claim has been
first issue is whether Senkbeil's claim is cognizable
under 28 U.S.C. § 2254. Federal habeas corpus relief
does not lie for errors of state law. Wilson v.
Corcoran, 562 U.S. 1, 5 (2010). Rather, to obtain
relief, a state prisoner must show that he or she is
“in custody in violation of the Constitution or laws or
treaties of the United States.” Jones v.
Basinger, 635 F.3d 1030, 1040 (7th Cir. 2011) (quoting
28 U.S.C. § 2254(a)).
“fair and just reason” standard for withdrawing a
guilty plea is a state-law standard. It is not mandated by
the U.S. Constitution or any other federal law that is
binding on the states. Thus, any claim that the state courts
misapplied this standard in the course of adjudicating
Senkbeil's case would not be cognizable on federal habeas
corpus review. Senkbeil seems to concede as much. However, he
argues that, in this case, the court of appeals effectively
created a different, more stringent standard for a defendant
who enters an Alford plea when it noted that such a
defendant's maintaining his innocence is a “less
compelling” reason for withdrawing the plea. The
petitioner contends that the court's treating