United States District Court, W.D. Wisconsin
RONALD E. SCHROEDER, Petitioner,
LIZZIE TEGELS, Respondent.
BARBARA B. CRABB, DISTRICT JUDGE.
Ronald Schroeder has responded to the court's order to
show cause why many of the claims in his petition for a writ
of habeas corpus should not be dismissed under the doctrine
of procedural default. Because none of the arguments in
petitioner's response have merit, I am dismissing all of
is challenging convictions from the year 2007 for sexual
assault of an unconscious person, taking nude photographs of
a woman without her consent and accessing her computer data
without consent. He raised numerous claims in his petition,
which I screened in accordance with Rule 4 of the Rules
Governing 2254 Petitions. Dkt. #8. I dismissed some of the
claims on the merits and concluded that the rest may be
subject to dismissal under the doctrine of procedural default
because the Wisconsin Court of Appeals concluded that
petitioner had forfeited the claims by failing to develop an
argument showing why he believed he was entitled to relief.
State v. Schroeder, No. 2014AP1388, 2016 WL 8606267,
at *1 (Wis. Ct. App. May 18, 2016) (petitioner “fails
to provide a sufficient reason explaining why these claims
were not raised earlier, as part of his direct appeal.
Insofar as Schroeder asserts postconviction counsel's
ineffectiveness as a sufficient reason, his motion fails to
allege “sufficient material facts-e.g., who, what,
where, when, why, and how-that, if true, would entitle the
defendant to the relief he seeks.”). The Court of
Appeals for the Seventh Circuit has upheld as
“adequate” Wisconsin's requirement that
prisoners develop arguments regarding ineffective assistance
of counsel. Lee v. Foster, 750 F.3d 687, 694 (7th
Cir. 2014) (“The . . . rule is a well-rooted procedural
requirement in Wisconsin and is therefore adequate.”).
Accordingly, I gave petitioner an opportunity to show that
the doctrine should not apply either because he had good
cause for failing to develop his arguments or because
enforcing the default would lead to a fundamental miscarriage
of justice. Steward v. Gilmore, 80 F.3d 1205,
1211-12 (7th Cir. 1996) (setting forth standard for
overcoming procedural default).
response, petitioner asserts five reasons why the court
should consider his petition on the merits: (1) the state
failed to respond to his post conviction motion in the state
circuit court, so it forfeited a “procedural bar
defense”; (2) he raised all his claims “in
detail” in the post conviction motion he filed in the
circuit court; (3) his “biased juror” claim
raises a structural error, so it cannot be forfeited; (4) he
“diligently pursued” his “biased
juror” claim; and (5) he did not have counsel during
post conviction proceedings. I conclude that none of these
reasons show either that the state court of appeals erred in
rejecting his claims or that petitioner has cause for
first reason is a nonstarter because the state court of
appeals was not relying on a “procedural bar
defense” raised by the state. The court simply was
enforcing its own rule that a petitioner must develop his
argument. Regardless what the state argues, the burden
remains on the petitioner to show that he is entitled to
relief; the state is not required to show that petitioner
lacks entitlement to relief.
second reason represents a challenge to the court of
appeals's conclusion that petitioner failed to develop
his argument adequately. This argument fails for two reasons.
First, the Court of Appeals for the Seventh Circuit has
declined to consider whether the state court applied its own
rule properly in any particular case. Lee, 750 F.3d
at 694 (rejecting argument that “the level of
specificity in [habeas petitioner's] postconviction
motion. . . should be sufficient to withstand review under
the [Wisconsin] rule, ” reasoning that “our
review of the adequacy of a state ground is limited to
whether it is a firmly established and regularly followed
state practice at the time it is applied, not whether the
review by the state court was proper on the merits.”).
Second, petitioner cites nothing in the record showing that
he identified to the state courts how his counsel rendered
deficient performance and prejudiced him. The two pages he
cites from his state court brief are nothing but conclusory
assertions without context.
third reason is that a “biased juror” claim
cannot be forfeited because it is a “structural
error.” Petitioner misunderstands the law. The Supreme
Court has determined that some trial errors “are so
intrinsically harmful” that prejudice is assumed and
need not be proven in each case. Winston v.
Boatwright, 649 F.3d 618, 632 (7th Cir. 011). However,
harmless error and procedural default are separate concepts.
A petitioner still must show that his trial actually
contained a structural error because structural errors are
subject to waiver and forfeiture under the doctrine of
procedural default just like any other claim. Ward v.
Hinsley, 377 F.3d 719, 726 (7th Cir. 2004) (“The
procedural default doctrine is grounded in concerns of comity
and federalism. These concerns are in no way diminished if
the federal claim raised before the federal habeas court is
one of structural error.”).
fourth reason, that he “diligently pursued” his
“biased juror” claim, is another nonstarter. It
is undisputed that petitioner did not raise a claim about a
biased juror on direct appeal. Although plaintiff blames his
counsel for that failure, that simply brings the analysis
back the original problem, which is that the court of appeals
concluded that petitioner failed to adequately articulate the
basis for his ineffective assistance claim.
petitioner's allegation that he did not have counsel for
his postconviction motion is both misleading and irrelevant.
The circuit court appointed two lawyers for
plaintiff, but petitioner could not get along with either of
them. Schroeder, 2016 WL 8606267, at *1. After the
second lawyer withdrew, petitioner stated that he was
“grateful and relieved to have [the attorney] off my
event, petitioner's status as a pro se litigant is not a
ground for excusing his procedural default. Petitioner relies
on Martinez v. Ryan, 566 U.S. 1, 17 (2012), in which
the Supreme Court set forth the following rule: “Where,
under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.” This rule does not help
petitioner because the Court of Appeals for the Seventh
Circuit has held that it does not apply in Wisconsin:
“Wisconsin law expressly allows-indeed, in most cases
requires-defendants to raise claims of ineffective assistance
of trial counsel as part of a consolidated and counseled
direct appeal, and provides an opportunity to develop an
expanded record.” Nash v. Hepp, 740 F.3d 1075,
1079 (7th Cir. 2014).
petitioner has failed to identify any reason why his claims
should not be barred under the doctrine of procedural
default. Accordingly, I am dismissing these claims and
denying his petition for a writ of habeas corpus.
Rule 11 of the Rules Governing Section 2254 Cases, I must
issue or deny a certificate of appealability when entering a
final order adverse to the petitioner. A certificate of
appealability may issue if the petitioner has made a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). That means that
petitioner must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). Although Rule 11 allows the court to
invite further briefing on this issue, it is not necessary to
do so here because the question is not a close one. In this
case, it is clear that (1) most of petitioner's claims
are barred under the doctrine of procedural default; and (2)
petitioner's remaining claims have no merit, as discussed
in the original screening order, dkt. #8. Accordingly, no
certificate will issue.