United States District Court, E.D. Wisconsin
ORDER DENYING RECONSIDERATION AND FOR
William C. Griesbach, Chief Judge United States District
15, 2017, Paul Alexander Turner, who is currently serving a
state sentence for third degree sexual assault, filed a
petition for federal habeas corpus pursuant to 28 U.S.C.
§ 2254. On initial screening pursuant to Rule 4 of the
Rules Governing Section 2254 Cases, the court found from the
face of the petition and the attached exhibits that
Turner's ineffective assistance of trial counsel,
ineffective assistance of post-conviction counsel, and
insufficiency of evidence claims were without merit and
ordered them dismissed. The court also ordered Turner to show
cause why his claim that the sentence after revocation of his
extended supervision was illegally imposed should not be
dismissed for his failure to exhaust. Turner has now filed a
motion for reconsideration, extension of time, recusal, and
for a certificate of appealability.
asserts that “he did in fact diligently exhaust every
state remedy” regarding his post-revocation sentence
extension claim, including filing a writ of certiorari in the
county of his conviction pursuant to Wis.Stat. §
801.50(5). (ECF No. 12 at 3.) If Turner did file such a writ,
he may have fully exhausted his state court remedies as to
that claim. Accordingly, the Respondent will be directed to
file a response to Turner's post-revocation sentence
extension claim within 45 days from the date of this order.
Turner's motion for reconsideration of the court's
dismissal of his other claims, however, will be denied.
motion for reconsideration contains no new evidence and
points to no new controlling law. Instead, Turner asserts
that the court “denied 3 of the 4 grounds reaised [sic]
for relief and also ignored other grounds for relief unknown
to petitioner.” (ECF No. 12 at 2.) He further claims
the court denied his request to amend the petition to include
additional grounds raised on appeal that he didn't know
about because he did not have access to every ground raised
or know how it was raised. In fact, Turner never sought leave
to amend his petition, and even now, does not seek to do so.
Essentially, he argues that his habeas petition should be
allowed to proceed on all possible claims, including claims
of which he is currently unaware.
court previously noted in its June 2, 2017 Screening Order,
“[h]abeas corpus petitions must meet heightened
pleading requirements . . . .” McFarland v.
Scott, 512 U.S. 849, 856 (1994) (citing 28 U.S.C. §
2254 Rule 2(c)). The petition must “specify all the
grounds for relief available to the petitioner” and
“state the facts supporting each ground.” 28
U.S.C. § 2254 Rule 2(c); see also Borden v.
Allen, 646 F.3d 785, 810 (11th Cir. 2011) (“The
§ 2254 Rules and the § 2255 Rules mandate
‘fact pleading' as opposed to ‘notice
pleading, ' as authorized under Federal Rule of Civil
Procedure 8(a).”). Turner's petition fails to state
the facts supporting the three claims the court ordered
petition alleges for Ground One, for example, that Turner
“was denied right to call witnesses or present
evidence.” (ECF No. 1 at 6.) In the space for
“supporting facts, ” Turner wrote “counsel
refused to invistage [sic], so I attempted to amend witnesses
list and present evidence both were denied.”
(Id.) The problem with this claim, which I
characterized as an ineffective assistance of trial counsel
claim, is that it fails to say who the witnesses are that
counsel failed to call and what evidence they would have
provided. In order to justify further review of his
conviction, this time by a federal court, it is not enough
for Turner to simply say his attorney failed to introduce
evidence. He must say what that evidence is so that the court
can assess, at least as an initial matter, whether such
evidence was even relevant. Turner provides not even a hint
of what the missing evidence was that he thinks should have
been introduced at his trial.
Turner's “Ground Two” lists ineffective
assistance of counsel. For “supporting facts, ”
the petition alleges “trial counsel was totally
ineffective refused to call key witness or present
exculpatory evidence prior, at or post trial; post-conviction
counsel refused to adequately ‘show up' or argue
any issue.” (Id. at 7.) Again, Turner fails to
identify the witness who was not called or the exculpatory
evidence that was not introduced. He likewise fails to say
what issue or issues appellate counsel failed to raise that
would have made any difference. Absent some indication of
what the missing evidence was or what the un-argued issues
were, Turner is clearly not entitled to relief.
“Ground Three” which lists “insufficient
evidence to convict, ” the petition simply says
“the element of force was improply [sic] applied and
without consent was not proven beyond any reasonable
doubt.” (Id. at 8.) This also is not enough.
Insufficiency of the evidence is not a ground on which habeas
relief is available unless “it is found that upon the
record evidence adduced at the trial no rational trier of
fact could have found proof of guilt beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 324
(1979). Although the petition fails to recount what evidence
was introduced at trial, the Wisconsin Court of Appeals
provided a summary of the evidence in its decision affirming
Turner's conviction. According to the complaining
witness, she had fallen asleep on the couch and awoke to find
Turner performing oral sex on her. She demanded he stop but
instead he pinned her down and forced his penis into her
vagina as she continued to yell, “No.” (ECF No.
1-1 at 14.) The court noted that while Turner's defense
was that his sexual acts with the complaining witness were
consensual, the witness testified, “I told [Turner] to
stop. He wouldn't stop. I told him to get off me. He
wouldn't get off me. He pinned my right arm down on the
couch and then he just forced it in.” (Id. at
17 n.2.) This evidence, which Turner does not contend was
misstated by the state court, is more than sufficient to
support the jury's verdict even if this court were to
apply a de novo standard of review.
seems to argue that he cannot provide the details required
under fact pleading because the state courts denied his
previous appeals without addressing any issues. It is not
what the state courts said that is called for at this stage,
however, but rather the specific claim or claims he asserted.
Turner must say why his current custody is “in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). Federal
habeas review is not available as a matter of course.
reason fact pleading is required at this stage is apparent
when one considers the nature of the relief afforded under
§ 2254 and the circumstances in which federal review of
state court convictions is authorized.
Unlike a plaintiff pleading a case under Rule 8(a), the
habeas petitioner ordinarily possesses, or has access to, the
evidence necessary to establish the facts supporting his
collateral claim; he necessarily became aware of them during
the course of the criminal prosecution or sometime
afterwards. The evidence supporting a claim brought under the
doctrine set forth in Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for example, may
not be available until the prosecution has run its course.
The evidence supporting an ineffective assistance of counsel
claim is available following the conviction, if not before.
Whatever the claim, though, the petitioner is, or should be,
aware of the evidence to support the claim before bringing
Borden, 646 F.3d at 810.
applicant for habeas relief under § 2254 knows or should
know the facts supporting his claim or claims follows from
the fact that before a person serving a sentence for a state
court conviction can seek federal relief under § 2254,
he must first have exhausted his state court remedies. This
means for a person in Turner's position that he must
already have had the opportunity for a trial by jury in a
state court, the opportunity to seek post conviction relief
in the same court, to obtain direct review of any adverse
decision by the Wisconsin Court of Appeals, and to seek
discretionary review in the Wisconsin Supreme Court on a
petition for review, all with the full assistance of counsel.
No claim can be reviewed by a federal court under § 2254
unless the state courts are first given a full and fair
opportunity to resolve it. O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). Given this
requirement, it necessarily follows that any state prisoner
claiming relief under § 2254 must know exactly what his
claims are and the facts on which they are based. A petition
for federal relief under § 2254 is not a vehicle for
coming up with new claims. Thus, conclusory allegations of
possible constitutional violations at the § 2254 stage
are simply insufficient. Borden, 646 F.3d at 810
n.31 (“Inherent in the fact pleading requirement of the
federal habeas rules is the notion that a habeas case is not
a vehicle for a so-called fishing expedition via discovery,
an effort to find evidence to support a claim.”).
more than notice pleading also makes sense when one considers
the additional time and expense the state is required to
incur in responding to and defending such an action. Under
Rule 5 of the Rules Governing § 2254 Proceedings, the
respondent must not only file an answer which addresses each
allegation in the petition and indicates whether any claim in
the petition is barred by a failure to exhaust state
remedies, but also assemble and file relevant parts of the
transcript of the trial, briefs submitted by the petitioner
and prosecution on previous appeals and any state appellate
court decisions. Additional briefing is usually required in
the district court as well. Of course, when a claim that may
have merit has been raised, the additional time and expense
is entirely justified. No one wants an innocent person or one
wrongfully convicted to remain in prison. But absent some
indication that the petitioner has a legitimate issue, and
considering the number of state prisoners serving sentences,
requiring the state to file such a response as a matter of
course is unreasonable, especially considering the procedural
protections that have already been afforded by the state. The
State of Wisconsin has already expended significant resources