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Maus v. Foster

United States District Court, E.D. Wisconsin

February 21, 2017

BRIAN A. MAUS, Petitioner,
BRIAN FOSTER, Respondent.



         On the morning of January 3, 2005, Gerri Bennetts woke after being hit on the right side of her head by a blunt object. As she turned and discovered the barrel of a gun, Bennetts realized there were three people in her room. Although one of the men had wrapped his face in Ace bandages, Bennetts recognized the voice of Brian Maus -- a man she had known for eleven or twelve years. The three men left after removing three safes, Bennett's Glamour Shots portfolio, and other property. Afterward, Bennetts called the 911 dispatcher to identify Maus, and to provide the license plate number and a description of the getaway car. Following the issuance of charges and representation by no fewer than seven attorneys[1], Maus insisted on representing himself at trial.[2] Maus pled no-contest to a felony bail jumping charge, but proceeded to verdict on charges of armed burglary with a dangerous weapon and armed robbery with threat of force, both as party to a crime. The jury found him guilty on both counts, and the trial court sentenced Maus to thirteen years initial confinement and thirteen years of extended supervision, to be served consecutive to any existing sentence. The Wisconsin Court of Appeals granted appellate counsel's motion to withdraw “based on Maus's disorderly, disruptive and disrespectful behavior and his grievance filed with the Office of Lawyer Regulation” but gave Maus an extension to file a post-conviction motion. That 85-page post-conviction motion with 15 exhibits was denied. Maus appealed, presenting eighteen separate claims for relief. The Wisconsin Court of Appeals affirmed, and the Wisconsin Supreme Court denied his petition for review in a September 24, 2014, order. State v. Maus, 2014 WI.App. 90, cert. denied, 855 N.W.2d 696 (Sept. 24, 2014).

         The pending petition is governed by the provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA allows a district court to issue a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The court can grant an application for habeas relief if it meets the stringent requirements of 28 U.S.C. § 2254(d), set forth as follows:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         A claim is considered to be procedurally defaulted and not subject to habeas review when the state court denies a petitioner's claim based on an independent and adequate state law ground. A state law ground is independent when the court relied on the procedural bar as an independent basis for its disposition of the case. Kaczmarek v. Rednour, 627 F.3d 586, 592 (7th Cir. 2010)(citing Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010)). Further, the state law ground is adequate when it has been proclaimed prior to the court's ruling and regularly followed by the state's courts. Id., 627 F.3d at 592. When a state court decides a claim on an independent and adequate state law ground, it does not reach federal law. Szabo v. Walls, 313 F.3d 392, 395-96 (7th Cir. 2002).

         There are limited circumstances in which a federal court will proceed with habeas review notwithstanding a procedural default. Lee v. Kemna, 534 U.S. 362, 363, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002). Specifically, a procedural default may be overlooked when the petitioner demonstrates cause for the default and prejudice based on that default or when the petitioner establishes that the denial of relief will result in a miscarriage of justice. Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), superseded on other grounds by statute, Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132, 110 Stat. 1214 (1996).

         Maus's petition set forth 21 separate grounds for relief; however, this court dismissed his claim that the trial court “forced counsel on him when he wanted none” because the record revealed he represented himself at trial. After respondent pointed out that three of the claims were not exhausted in the state courts, Maus sought leave to file a petition omitting the three claims. These claims included (1) Maus was forced to represent himself, (2) his rights were violated because he did not have a probable cause hearing within 15 days of his arrest, and (3) Maus was denied his right to attack a witness's credibility “about being mentally retarded.” (Doc. 22.) Accordingly, the court turns to the remaining claims in the amended petition. (Doc. 22-1.)

         Initially, Maus alleges that appellate counsel (Karen Missimer) was ineffective in failing to raise “all the meritial [sic] issues Maus point[ed] out on appeal, ” and that trial counsel (Alexander Brown, Robert Rusch, Shawn Mutter, John Bachman, and Barbara Cadwell) were ineffective in “refusing to make proper arguments or objections to protect Maus and his civil rights.” (Doc. 22-1.) According to Maus, Missimer moved to withdraw without filing a no-merit report or a post-conviction motion thereby forcing him to represent himself. He further contends that every one of the attorneys “criminally and civilly conspired with the District Attorney Ralph Uttke, judges, Langlade County police, state witnesses and others to cover up the criminal misconduct that took place in Langlade County.” (Doc. 22-1.)

         Attached to his brief, Maus includes motions to withdraw that were filed by counsel during his criminal proceedings. Each of the attorneys cited Maus's insistence on filing his own motions without their knowledge or consent, and his refusal to hear their advice. Attorney Bachman stated that Maus was “utterly impervious to advice from any attorney, ” Attorney Mutter stated Maus refused to even listen to his advice, and Attorney Bachman stated that Maus “was unable to rationally discuss anything with him” instead directing a “stream of vile profanities at him.” Attorney Cadwell refused to file Maus's motions on the grounds that such motions were frivolous and such behavior unethical. Indeed, Attorney Mutter could not “ethically” represent Maus who was pursuing an objective that Mutter considered to be “repugnant and imprudent.” (Doc. 27-2, Exs. B-E.)

         Further, during a April 13, 2006, hearing in Langlade County Circuit Court, Maus unequivocally stated his intention to proceed pro se:

Mr. Maus: I represent myself. I filed that motion on September 28, saying that I represent myself. And this court has abused its discretion and did everything that they could trying to put a counsel onto me. I didn't ask this court or the State or one of the State's crooks to represent me. I represent myself. I filed my own motion September 28th. And I am representing myself. I don't want none of the State's crooks. All they are - they steal money and lie ....

(Doc. 16-13.) The Wisconsin Court of Appeals granted Attorney Missimer's motion to withdraw as appellate counsel based on Maus's “disorderly, disruptive, and disrespectful behavior and his grievance filed with the Office of Lawyer Regulation.” (Doc. 16-4.) In her motion, Missimer requested that the Court of Appeals dismiss the no-merit appeal without prejudice and set the time for Maus to file a pro se post-conviction motion or notice of appeal. Maus moved to have Missimer disbarred and accused his counsel of conspiring with others to cover up criminal misconduct. The Court of Appeals noted that Maus “was previously warned by the circuit court that his conduct could result in forfeiture of his right to counsel.” Consequently, the Court of Appeals refused to order the State Defender to appoint replacement counsel and granted Maus an additional sixty days to file a pro se post-conviction motion or notice of appeal. (Doc. 16-4.)

         During the June 20, 2013, post-conviction motion hearing, Langlade Count Circuit Judge Leon D. Stenz addressed Maus's argument that appellate counsel was allowed to withdraw before filing a no-merit brief. In rejecting Maus's argument, Judge Stenz explained:

I do know from my handling of the case that Mrs. Messimer [sic] has been here twice requesting to withdrawal [sic] from representation.
I also know this, in the case in chief M. Maus has had approximately at least seven attorneys, I believe. All of them have sought to withdrawal [sic], I believe, so, apparently, Mr. Maus is difficult to work with.
When he was here before the court for in the case in chief, I advised him as to the advantage and disadvantages of having an attorney and warned him of potential of forfeiture of counsel. When we discussed the issue of Mrs. Messimer's [sic] request to withdrawal [sic], we had two different hearing[s] on that. I again advised Mr. Maus of the benefit of attorneys and disadvantage of representing himself and warned him of potential of forfeiture of counsel, and I explained to him the authority of appellate counsel.
He expressed to the court an understanding and agreement that he would allow her to perform her duties. And despite those warnings and despite his knowledge of potential for forfeiture he refused, apparently to cooperate with the attorney and attempted from my review, attempted to manipulate the attorney and frustrated the attorney's ability to proceed.
I believe that frustration had to be knowingly and intentionally because he had to be advised so many times. I agree that I don't know the basis for the Court of Appeals allowance of Mrs. Messimer [sic] to withdrawal. [sic]. I can't speak to that issue. All I can say is that Mr. Maus was warned on number of occasions that he had to cooperate.

(Doc. 20-8 at 7-8.)

         On appeal from the order denying post-conviction relief, the Wisconsin Court of Appeals ruled that Missimer properly refused to pursue all claims because she had an ethical duty not to pursue meritless claims. Maus, 2014 WI.App. 90, ¶ 8 (citing State ex rel. Flores v. State, 183 Wis.2d 587, 621, 516 N.W.2d 362 (1994)). The Court of Appeals determined that any ineffective assistance claim was moot because “Maus was able to personally raise his claims after his no-merit appeal was dismissed and his case remanded for him to file a post-conviction motion.” Id. Finally, there was no basis for the accusation that Missimer illegally withdrew from representation inasmuch as she successfully moved to withdraw based on Maus's inappropriate behavior. Id.

         With respect to the allegations that all five trial attorneys were ineffective, the Wisconsin Court of Appeals ruled that the ineffective assistance of trial counsel claims were moot because Maus had the opportunity to raise all of the claims “once he was allowed to proceed pro se.” Id., 2014 WI.App. 90, ¶ 9. The only claims that Maus could not later raise were (1) that the complaint stated lies, and (2) that there was no probable cause because it was not raised before the preliminary hearing. However, counsel was not ineffective in this respect because any such claims would have been rejected. Id.

         Respondent argues that the court's ruling that the ineffective assistance of counsel claims were moot provides an adequate state law ground for the decision independent of the federal question. Coleman v. Thompson, 501 U.S. 722, 729 (1991). If the state court denied the claim on state laws, the claim is subject to procedural default. Maus responds that he didn't default any of the issues because he never had appellate counsel appeal his conviction, and to hold him to a default on this issue would be a miscarriage of justice. However, this argument fails because the Court of Appeals found that appellate counsel had an ethical duty not to pursue claims she felt were meritless and she did not “illegally withdraw.” 2014 WI.App. 90, ¶ 8. Her withdrawal was based on Maus's inappropriate behavior. Hence, there can be no finding of deficient performance on this record.

         As for trial counsel, the Court of Appeals similarly emphasized that counsel was not ineffective for failing to file motions they deemed frivolous, and they “correctly” determined Maus's claims lacked merit. Because this court finds no evidence of deficient performance and the state court's rulings were neither contrary to nor an unreasonable application of Strickland v. Washington, 466 U.S. ...

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