United States District Court, W.D. Wisconsin
ANTHONY S. MASTRO, Petitioner,
CHRISTINE SUTER, Superintendent, Gordon Correctional Center,  Respondent.
OPINION AND ORDER
STEPHEN L. CROCKER Magistrate Judge.
December 3, 2013, petitioner Anthony S. Mastro was convicted
of a tenth offense OWI in the Circuit Court for Brown County,
Wisconsin. He now seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He argues that he should have been
convicted and sentenced of a sixth-offense OWI, rather than a
tenth offense, because he had successfully challenged four of
his previous OWI convictions. The state filed an answer,
along with records from the relevant state court proceedings,
and both parties have submitted briefing, making the petition
ripe for decision. On May 11, 2017, both parties consented to
magistrate jurisdiction and this case was reassigned to me.
reviewed the petition, the parties' arguments and the
relevant state court decisions, I conclude that Mastro's
petition must be denied.
Brown County Case No. 13CF950, Mastro was charged with a
tenth-offense OWI. The state alleged that Mastro had nine
previous drunk-driving convictions, including four from
Minnesota. At arraignment, Mastro's attorney argued that
the state should have charged Mastro with sixth-offense OWI,
not tenth-offense. The attorney pointed out that for
Mastro's most recent conviction in 2009, which was in the
same county but before a different state court judge, Mastro
had initially been charged with ninth-offense OWI. That
charge had been reduced to a fifth-offense OWI, however,
after Mastro successfully collaterally attacked four prior
Minnesota convictions. In his 2013 case, Mastro's
attorney argued that because he had successfully challenged
the four prior convictions, the state should be precluded
from relying on them in a subsequent case. Mastro and the
state eventually agreed that Mastro would plead guilty to an
OWI charge, and that the trial court would hold further
proceedings to determine how many of his prior convictions
could be counted for determining the penalty.
subsequent hearing, the state introduced Mastro's
certified driving record from the Wisconsin Department of
Transportation, which included the Minnesota convictions that
Mastro had successfully collaterally attacked in the 2009
case. Mastro, through counsel, argued that the four
convictions should not be considered for several reasons. As
he did during his 2009 case, Mastro argued that three of the
convictions were in violation of his right to representation
and one of the convictions was based on faulty records.
Additionally, Mastro argued that issue preclusion prevented
the court from counting all four charges because the court
had excluded them in his 2009 case.
circuit court rejected all of Mastro's arguments,
including the issue preclusion argument. The court concluded
that issue preclusion did not apply because the state had
conceded the validity of Mastro's collateral
challenges in the earlier case, and thus, the parties never
“actually litigated” Mastro's arguments
regarding inadequate representation and faulty records.
See Estate of Rille ex rel. Rille v. Physicians Ins.
Co., 2007 WI 36, ¶¶ 36-38, 300 Wis.2d 1, 728
N.W.2d 693 (in determining whether issue preclusion applies
under Wisconsin law, court must determine whether issue was
actually litigated in a previous action and essential to the
prior judgment, and whether applying issue preclusion would
be fundamentally fair). The circuit court ultimately
sentenced Mastro to seven years and six months'
incarceration and five years extended supervision for a
charge of tenth-offense OWI.
filed a postconviction motion in the trial court, again
arguing that issue preclusion should have prevented the trial
court from counting the four Minnesota convictions at
sentencing. (See dkt. #14-5.) The circuit court
denied the motion, holding that the validity of the prior
convictions had not been “actually litigated” in
the 2009 case because of the state's concession, and that
it would be fundamentally unfair to hold the state to its
concession because of Mastro's dangerous actions in the
current case and because he was on extended supervision when
he engaged in them. (See dkt. #14-2.)
appealed his conviction and the circuit court's order
denying his postconviction motion to the Wisconsin Court of
Appeals, arguing that the circuit court erred by rejecting
his issue preclusion argument. (See dkts. #14-2,
#14-4.) Mastro noted that issue preclusion has, in part, a
constitutional basis in the Double Jeopardy and Due Process
Clauses of the Fifth and Fourteenth Amendments, though Mastro
did not develop any due process claim. The court of appeals
affirmed. It assumed that the validity of Mastro's prior
convictions had actually been litigated in the 2009 cases,
but concluded that Mastro had failed to demonstrate that the
circuit court erred when it held that it would be
fundamentally unfair to hold the state to its earlier
concession. (See dkt. #14-5.) Mastro unsuccessfully
petitioned the Wisconsin Supreme Court for review.
(See dkts. #14-6, #14-9).
then filed a federal habeas petition, arguing that the
failure to apply issue preclusion to his four Minnesota
convictions violated double jeopardy. (See dkt. #1.)
In support his claim, Mastro submitted the brief his attorney
had filed with the state court of appeals.
Double Jeopardy Claim
sole claim asserted in his habeas petition is that the state
court's refusal to apply issue preclusion violated his
rights under the Double Jeopardy Clause of the Fifth
Amendment. Specifically, he argues that because he had
successfully challenged four Minnesota convictions in a prior
state court action, the state should have been precluded from
relying on those same four convictions to charge him with a
higher offense OWI. Because the state court did not preclude
reliance on those four convictions, Mastro argues, his
charge, and ultimately his sentence, were higher than they
should have been.
of habeas corpus cannot issue unless the petition
demonstrates that he is in custody in violation of the
Constitution, laws, or treaties of the United States. 28
U.S.C. § 2254(a). As the state courts adjudicated
Mastro's claims on the merits, this court's review of
the present habeas corpus petition is governed by 28 U.S.C.
§ 2254(d). Under that statute, the Court may not grant
habeas relief unless the state court's decision on the
merits was contrary to, or involved an unreasonable
application of, clearly established federal law, as