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Adams v. Hepp

United States District Court, E.D. Wisconsin

October 30, 2017

PAUL ALLEN ADAMS, Petitioner,
v.
RANDALL HEPP, Respondent.

          ORDER

          J. P. Stadtmueller, U.S. District Judge

         1. INTRODUCTION

         Petitioner Paul Allen Adams (“Adams”) filed a petition for writ of habeas corpus on May 19, 2017. (Docket #1). Magistrate Judge William E. Duffin screened Adams' petition and found that he could proceed. (Docket #5). On September 14, 2017, Respondent moved to dismiss Adams' petition. (Docket #27). The motion is now fully briefed. (Response, Docket #33; Reply, Docket #34). For the reasons explained below, Adams' petition must be dismissed as procedurally defaulted.

         2. BACKGROUND

         In March 2009 and July 2010, Adams was convicted, inter alia, of his fifth and sixth offenses for operating a motor vehicle while intoxicated (“OWI”). See State of Wisconsin vs. Paul A. Adams, 2008-CF-992 and 2010-CF-487, available at: https://wcca.wicourts.gov. While on supervision for those convictions, Adams committed his seventh OWI offense. (Docket #1-1 at 7). This prompted his probation officer to seek revocation. Id. A revocation hearing was held in May 2014, and Adams appeared with counsel. Id. at 80. Adams' supervision was revoked by the presiding administrative law judge (“ALJ”). Id. at 81-84.

         Adams appealed the ALJ's ruling to the Division of Hearings and Appeals, which in June 2014 sustained the ALJ's decision. Id. at 78-79. Adams then filed a petition for a writ of certiorari in state court. The circuit court denied Adams' request for a writ in June 2015, concluding that the decisions below were not arbitrary and that most of Adams' arguments were inappropriate in a certiorari action. Id. at 87-96.

         Adams appealed the circuit court's ruling. He raised only one argument on appeal: that he was denied due process in the revocation hearing. Id. at 14, 60-74. The Court of Appeals rejected Adams' appeal, finding that he had waived his due process challenge by failing to object to the allegedly deficient process during the revocation hearing. Id. at 16-17.

         Adams' instant habeas petition raises four separate grounds for relief. First, he alleges that his due process rights were violated in the revocation hearing because he was not provided the evidence which was used against him prior to the hearing (“Ground One”). (Docket #1 at 6-7). Second, Adams asserts a violation of the Confrontation Clause of the Sixth Amendment, in that certain hearsay statements were admitted at the hearing (“Ground Two”). Id. at 7-8. Third, Adams claims that the ALJ and the Division of Hearings and Appeals (and possibly others, it is not clear) were not impartial in their decision making (“Ground Three”). Id. at 8. Fourth, he argues that he was afforded ineffective assistance of counsel at the revocation hearing (“Ground Four”). Id. at 9.

         3. STANDARD OF REVIEW

         The federal habeas corpus statute “permits a federal court to entertain only those applications alleging that a person is in state custody ‘in violation of the Constitution or laws or treaties of the United States.'” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing 28 U.S.C. § 2254(a)). “As amended by [the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)], 28 U.S.C. § 2254 sets several limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner.” Id. As a result, the Court may grant a writ of habeas corpus only if the state court's decision with respect to that claim was: (1) “contrary to . . . clearly established federal law, as determined by the Supreme Court of the United States”; (2) “involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (3) “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(1-2); see also Conner v. McBride, 375 F.3d 643, 648-49 (7th Cir. 2004).

         4. ANALYSIS

         The Court cannot reach the merits of any of Adams' grounds for relief because he has procedurally defaulted on each of them. The Seventh Circuit has provided recent instruction on procedural default:

Procedural defaults take several forms, but two are paradigmatic. On the one hand, a claim might be procedurally defaulted when a petitioner fails to “fairly present” his claim to the state courts, regardless of whether he initially preserved it with an objection at the trial level. To fairly present his federal claim, a petitioner must assert that claim throughout at least one complete round of state-court review, whether on direct appeal of his conviction or in post-conviction proceedings. The complete round requirement means that the petitioner must raise the issue at each and every level in the state court system, including levels at which review is discretionary rather than mandatory. On the other hand, a claim might be procedurally defaulted through a petitioner's initial failure to preserve it with an objection, even if the petitioner later does attempt to present it for review. “[W]hen a state court refuses to reach the merits of a petitioner's federal claims because they were not raised ...

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