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Mastro v. Suter

United States District Court, W.D. Wisconsin

May 15, 2017

ANTHONY S. MASTRO, Petitioner,
CHRISTINE SUTER, Superintendent, Gordon Correctional Center, [1] Respondent.


          STEPHEN L. CROCKER Magistrate Judge.

         On 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. Dkt. 32.

         Having reviewed the petition, the parties' arguments and the relevant state court decisions, I conclude that Mastro's petition must be denied.


         In 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.

         At a 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.

         The 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.

         Mastro 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.)

         Mastro 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).

         Mastro 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.


         I. Double Jeopardy Claim

         Mastro's 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.

         A writ 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 ...

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