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Ziegler v. Schwochert

United States District Court, E.D. Wisconsin

February 21, 2017



          HON. PAMELA PEPPER United States District Judge.

         I. BACKGROUND

         Scott Ziegler filed a petition for a writ of habeas corpus under 28 U.S.C. §2254. Dkt. No. 1. Although the case originally was assigned to Judge Adelman, it was reassigned to Judge Pepper on December 30, 2014. The respondent has filed a motion to dismiss the petition, which the parties have fully briefed. For the reasons stated below, the court dismisses all of the petitioner's claims other than Ground Sixty, and sets a briefing schedule.

         A. The Original Criminal Case

         In 2009, the petitioner was convicted in Waukesha County of repeated first-degree sexual assault, interference with child custody, two counts of child enticement, second-degree sexual assault through force, seven counts of second-degree sexual assault, and two counts of child abuse. Dkt. No. 58-1 at 1. The trial court sentenced the petitioner to serve thirty-five years of incarceration and twenty years of extended supervision. Id.

         The petitioner, through counsel, pursued a direct appeal. Dkt. No. 58-5. On November 16, 2011, the Wisconsin Court of Appeals noted that the petitioner had raised several issues on appeal, but certified only one issue to the Wisconsin Supreme Court: whether the petitioner's conviction for interference with child custody had to be overturned because he lacked initial permission to have the child. Id. at 1. The appellate court noted that it could not decide the other issues the petitioner had raised without first answering the certified question. Id. at 4-5.

         On July 3, 2012, the Wisconsin Supreme Court decided that the plain language of the statute governing convictions for interference with child custody did not require initial permission. Dkt. No. 58-6 at 37. Consequently, it affirmed the petitioner's conviction on that charge, concluding that the evidence was sufficient to convict the petitioner of interference with child custody. Id. The Court then addressed the other issues that the petitioner raised on appeal. Id. It concluded that (1) the multiple counts of sexual assault were not multiplicitous, (2) the trial court's admission of the petitioner's mug shot at trial did not deprive the petitioner of a right to fair trial, and (3) “the circuit court appropriately exercised its discretion in ordering [the petitioner] to wear a stun belt at trial.” Id. at 37-38.

         B. The Federal Petition

         The petitioner filed this federal petition a little over ten months later, on May 31, 2013. Dkt. No. 1. On July 12, 2013, Judge Adelman (then presiding over the case) stayed the petition to allow the petitioner to exhaust certain claims in state court. Dkt. No. 13.

         C. State Post-Conviction Proceedings

         On October 17, 2013, a few months after Judge Adelman stayed the federal proceedings, the petitioner filed a post-conviction motion in Waukesha County Circuit Court, pursuant to Wis.Stat. §974.06.[1] Dkt. No. 58-17 at 149. On January 6, 2014, the circuit court summarily denied the motion. Id. The District II Court of Appeals summarily affirmed. Dkt. No. 58-20 at 1. The appellate court found that the petitioner's §974.06 motion had “fail[ed] to establish a sufficient reason for failing to raise [his post-conviction] claims as part of his direct appeal, ” and thus, that the petitioner's post-conviction claims were procedurally barred. Id. The Wisconsin Supreme Court denied the petition for review three months later. Dkt. No. 58-24.

         D. The Resumption of Federal Proceedings

         In February 2016, after a series of fits and starts that the court will describe below, the court issued an order concluding that the petitioner had exhausted his state-court post-conviction remedies, and lifted the stay. Dkt. No. 54 at 11.

         The petition listed sixty-eight grounds for habeas relief. Dkt. No. 1. On October 8, 2015, the court issued an order screening the petition. Dkt. No. 41. In that order, the court noted that while the petition was 107 pages long and contained sixty-eight grounds, it raised only one argument: “that the petitioner's state-court trial and appellate lawyers were ineffective, and thus that he was denied his Sixth Amendment right to effective assistance of counsel.” Id. at 4-5. The order concluded, “the petitioner may proceed on one claim, ineffective assistance of counsel in violation of his rights under the Sixth Amendment.” Id. at 5.

         After the court issued that order, the petitioner filed a letter informing the court that he continued to try to exhaust his state-court claims, dkt. no. 42, and a “response” indicating that he was not ready to proceed in federal court, dkt. no. 43. The court construed these pleadings as a request that the court reconsider the order lifting the stay; it granted that request, and appointed counsel to represent the petitioner. Dkt. No. 44 at 8-9. The court also vacated the scheduling ...

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