United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge
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
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 Adams' supervision was revoked by the presiding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
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.
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.
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.
STANDARD OF REVIEW
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).
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 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