United States District Court, E.D. Wisconsin
TIMOTHY J. KAPRELIAN, Petitioner,
LIZZIE TEGELS, Respondent.
DECISION AND ORDER DENYING PETITION FOR WRIT OF
WILLIAM C. GRIESBACH, CHIEF JUDGE
a case for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner Timothy J. Kaprelian, who is
representing himself, is incarcerated in a Wisconsin state
prison serving a 50 year sentence imposed after he pleaded no
contest to two counts of second-degree sexual assault/use of
force and one count of false imprisonment, in violation of
Wis.Stat. §§ 940.225(2)(a) and 940.30. As explained
in the screening order entered earlier in this case, the
petitioner makes seven claims: (1) he should be permitted to
withdraw his pleas because they were not knowing,
intelligent, and voluntary; (2) the judge who presided over
the state trial court proceedings was biased against him; (3)
the prosecution fabricated evidence and withheld exculpatory
evidence in violation of Brady v. Maryland, 373 U.S.
83 (1963); (4) the trial court erred by denying his motion to
suppress evidence; (5) his trial counsel provided
constitutionally deficient representation; (6) his appellate
counsel provided constitutionally deficient representation;
and (7) the trial court sentenced him based on inaccurate
information. For the reasons explained below, the court
denies the petition.
1, 2006, police arrived at a home that the petitioner shared
with the victim (his roommate and former girlfriend), acting
on information the police received from the victim's
sister. The night before, the petitioner had held the victim
captive while he battered and sexually assaulted her for
hours. He videotaped portions of the assault. The victim
allowed the officers to enter the home, and they found the
petitioner asleep in a bedroom. The officers arrested the
petitioner. The victim then gave the officers permission to
search the home without a warrant, and the officers proceeded
to gather evidence, including the videotape documenting
portions of the petitioner's abuse of the victim.
Circuit Court of Racine County, Wisconsin, represented by
counsel, the petitioner moved to suppress the evidence seized
during the search of the home. He claimed that the victim did
not have actual or apparent authority to consent to the
officer's search of the home, and that she did not
consent to the extensive search and seizure of property that
the police conducted. The trial court concluded that the
victim's consent and exigent circumstances justified the
warrantless search. After the trial court denied the
petitioner's motion to suppress, he pleaded no contest to
the charges of false imprisonment and second-degree sexual
he was sentenced, and still represented by counsel, the
petitioner appealed his sentence to the Wisconsin Court of
Appeals, which affirmed his sentence. The Wisconsin Supreme
Court denied the petitioner's petition for review.
Thereafter, proceeding without a lawyer, the petitioner filed
numerous postconviction motions under Wis.Stat. §
974.06. The trial court denied all of the petitioner's
§ 974.06 motions, resulting in two separate appeals.
State v. Kaprelian, Nos. 2012AP396 and 2013AP1239
(Wis. Ct. App.). In the first appeal, the petitioner argued
that the trial court judge should have recused himself due to
bias, that his motions alleged sufficient facts to entitle
him to an evidentiary hearing on his claim of ineffective
assistance of counsel, that his sentence was based on
incorrect information contained in the presentence
investigation report, and that he was fraudulently induced to
enter his no contest pleas. See generally ECF No.
19-10. In the petitioner's second appeal, he argued that
he should have been allowed to withdraw his no contest pleas
and that the trial judge should have recused himself from
hearing the petitioner's motion to withdraw his plea due
to bias. See generally ECF No. 19-21. The Wisconsin
Court of Appeals affirmed the trial court's orders
denying the petitioner's § 974.06 motions, and the
Wisconsin Supreme Court denied review of the appellate
court's decisions. The petitioner then filed his habeas
petition in this court.
court concludes that the petitioner cannot obtain habeas
relief on any of his claims. This court cannot review the
merits of many of the petitioner's claims, because those
claims were procedurally defaulted in the state court system.
The petitioner procedurally defaulted a number of his claims
by failing to give the state courts adequate information with
which to adjudicate the claims he made in his first set of
§ 974.06 motions, and by failing to present other claims
in his first set of § 974.06 motions. The court
concludes that none of the petitioner's non-procedurally
defaulted claims have merit.
State prisoners must present their constitutional claims to
the state's highest court before filing
those claims in a federal habeas petition.
prisoners are required to “exhaust” the remedies
available to them in the state court system before a federal
district court will consider the merits of constitutional
claims in a federal habeas petition. 28 U.S.C. §
2254(b)(1)(A); Dressler v. McCaughtry, 238 F.3d 908,
912 (7th Cir. 2001) (noting that if petitioner “either
failed to exhaust all available state remedies or raise all
claims before the state courts, his petition must be denied
without considering its merits”). A federal district
court cannot address the merits of the constitutional claims
raised in a federal habeas petition “unless the state
courts have had a full and fair opportunity to review
them.” Farrell v. Lane, 939 F.2d 409, 410 (7th
Cir. 1991) (citation omitted).
petitioner must raise his constitutional claims in state
court ‘to alert fairly the state court to the federal
nature of the claim and to permit that court to adjudicate
squarely that federal issue.'” Weddington v.
Zatecky, 721 F.3d 456, 465 (7th Cir. 2013) (quoting
Villanueva v. Anglin, 719 F.3d 769, 775 (7th Cir.
2013)). A petitioner exhausts his constitutional claim when
he has presented it to the highest state court for a ruling
on the merits. O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999); Arrieta v. Battaglia, 461 F.3d 861,
863 (7th Cir. 2006). Once the state's highest court has
had a full and fair opportunity to evaluate the merits of the
claim, a prisoner is not required to present it again to the
state courts. Humphrey v. Cady, 405 U.S. 504, 516
If a petitioner procedurally defaulted claims in the state
court system, a federal court cannot review
those claims in a federal habeas petition.
a petitioner exhausts review of his constitutional claim in
the state courts, it is possible that a federal habeas court
cannot review the claim on the merits because of a
“procedural default.” A criminal defendant
“procedurally defaults” his claim-and loses his
right to federal habeas review-if the last state court that
issued judgment “‘clearly and expressly'
states that its judgment rests on a state procedural
bar.” Harris v. Reed, 489 U.S. 255, 263 (1989)
(quoting Caldwell v. Mississippi, 472 U.S. 320, 327
(1985)). There can be several kinds of state procedural bars,
including, but not limited to, failing “to raise a
claim of error at the time or in the place that state law
requires.” Trevino v. Thaler, 569 U.S. 413,
state procedural bar is independent and adequate to support
the decision, a federal § 2254 petition does not provide
a defendant who has procedurally defaulted his claim in state
court another chance to litigate that defaulted claim in
federal court. This doctrine is based on fairness, and,
consistent with the exhaustion requirement, the principle
that in a federal system, “the States should have the
first opportunity to address and correct alleged violations
of state prisoner's federal rights.” Coleman v.
Thompson, 501 U.S. 722, 731 (1991). The Coleman
court explained that “a habeas petitioner who has
failed to meet the State's procedural requirements for
presenting his federal claims has deprived the state courts
of an opportunity to address those claims in the first
instance.” Id. at 732. If the independent and
adequate state ground doctrine did not exist, state prisoners
could “avoid the exhaustion requirement by defaulting
their federal claims in state court, ” and then
litigating those claims on the merits for the first time in
federal district court. Id. After all, “[a]
habeas petitioner who has defaulted his federal claims in
state court meets the technical requirements for exhaustion;
there are no state remedies any longer ‘available'
to him.” Id. “The independent and
adequate state ground doctrine ensures that the States'
interest in correcting their own mistakes is respected in all
federal habeas cases” by preventing evasion of the
exhaustion requirement. Id.
the “independent and adequate state ground”
doctrine, a constitutional claim cannot be raised in a
federal habeas petition if “a state-law default
prevent[ed] the state court from reaching the merits
of a federal claim . . . .” Ylst v.
Nunnemaker, 501 U.S. 797, 801 (1991) (emphasis added).
“[W]hen a petitioner fails to raise his federal claims
in compliance with relevant state procedural rules, the state
court's refusal to adjudicate the claim ordinarily
qualifies as an independent and adequate state ground for
denying federal review.” Cone v. Bell, 556
U.S. 449, 465 (2009). A state ground is independent
“when the court actually relied on the procedural bar
as an independent basis for its disposition of the
case.” Thompkins v. Pfister, 698 F.3d 976, 986
(7th Cir. 2012) (quoting Kaczmarek v. Rednour, 627
F.3d 586, 592 (7th Cir. 2010)). A state law ground is
“adequate” “when it is a firmly established
and regularly followed state practice at the time it is
determining if a state ground is adequate, this court does
not consider “whether the review by the state court was
proper on the merits.” Lee v. Foster, 750 F.3d
687, 694 (7th Cir. 2014). Discretionary state procedural
rules “can serve as an adequate ground to bar federal
habeas review.” Beard v. Kindler, 558 U.S. 53,
60 (2009). If the state court did not review the
constitutional claim on its merits pursuant to an independent
and adequate state procedural rule, the petitioner must show
either (1) cause for the default and resulting prejudice, or
(2) that the failure to consider the claims will result in a
fundamental miscarriage of justice for the federal habeas
court to revive the claim. Coleman, 501 U.S. at 750.
considering whether a state court decision rests on a state
procedural default, federal courts must look to “the
last explained state-court judgment.” Ylst,
501 U.S. at 805. “The test to avoid procedural default
in federal court is whether the state court's decision
rests on the substantive claims primarily, that is, whether
there is no procedural ruling that is independent” of
the court's decision on the merits of the claims.
Holmes v. Hardy, 608 F.3d 963, 967 (7th Cir. 2010).
However, “a state court that separately reaches the
merits of a substantive claim may also produce an independent
procedural ruling that bars federal habeas review.”
Id. at 967. The question is whether the state
court's procedural ruling is primary. If it is, then the
procedural ruling is independent and results in procedural
Under Wisconsin law, a postconviction motion under Wis.Stat.
§ 974.06 must allege claims with
factual specificity and must contain all of the
defendant's grounds for relief under §
petitioner's case involves two specific kinds of state
procedural bars: (1) the petitioner's failure to give the
state courts sufficient information to allow them to
meaningfully review federal constitutional claims of
ineffective assistance of counsel presented in a §
974.06 motion, and (2) his failure to present all his claims
for relief under § 974.06 in his original, supplemental,
or amended motion, unless the petitioner demonstrates a
sufficient reason for not doing so.
Wisconsin's postconviction procedures, a § 974.06
motion is the equivalent of a petition for a writ of habeas
corpus. Morales v. Boatwright, 580 F.3d 653, 656
(7th Cir. 2009). Generally, for a Wisconsin court to grant an
evidentiary hearing to a defendant on a § 974.06 motion,
the defendant must allege “sufficient facts to entitle
the defendant to a hearing for the relief requested.”
State v. Allen, 274 Wis.2d 568, 576, 682 N.W.2d 433
(2004). Whether the motion “alleges sufficient material
facts that, if true, would entitle the defendant to
relief” is a question of law that the state appellate
court reviews de novo. Id. (citing State v.
Bentley, 201 Wis.2d 303, 309-10, 548 N.W.2d 50 (1996)).
“If the motion raises such facts, the circuit court
must hold an evidentiary hearing.” Id. By
contrast, “if the motion does not raise facts
sufficient to entitle the movant to relief, or presents only
conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief,
the circuit court has the discretion to grant or deny a
hearing.” Id. Federal courts follow much the
same rule. See McFarland v. Scott, 512 U.S. 849, 856
(1994) (“Habeas corpus petitions must meet heightened
pleading requirements, see 28 U.S.C. § 2254
Rule 2(c), and comply with this Court's doctrines of
procedural default and waiver.”)
context of a § 974.06 motion alleging ineffective
assistance of counsel, a defendant is entitled to an
evidentiary hearing only if the motion alleges facts that, if
true, would entitle him to relief under the standards in
Strickland v. Washington, 466 U.S. 668 (1984).
Allen, 274 Wis.2d at 587. Under Strickland,
a claim of ineffective assistance of counsel has two parts:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
466 U.S. at 687. A § 974.06 motion alleging ineffective
assistance of counsel must give the trial court facts that
allow the court “to meaningfully assess” the
claim, including facts that allow the court to assess the
claim of prejudice; conclusory allegations without factual
support are insufficient to establish the right to a ...