United States District Court, E.D. Wisconsin
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS ALL
BUT GROUND SIXTY OF THE PETITION FOR WRIT OF HABEAS CORPUS
(DKT. NO. 57)
PAMELA PEPPER United States District Judge.
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.
The Original Criminal Case
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
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.
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.
The Federal Petition
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.
State Post-Conviction Proceedings
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. 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.
The Resumption of Federal Proceedings
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
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.
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