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Kaprelian v. Tegels

United States District Court, E.D. Wisconsin

December 20, 2017

LIZZIE TEGELS, Respondent.



         This is 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.


         On July 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.

         In the 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 assault.

         After 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.


         The 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.

         A. State prisoners must present their constitutional claims to the state's highest court before filing those claims in a federal habeas petition.

         State 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).

         “A 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 n.18 (1972).

         B. If a petitioner procedurally defaulted claims in the state court system, a federal court cannot review those claims in a federal habeas petition.

         Even if 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, 421 (2013).

         If the 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.

         Under 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 applied.” Id.

         When 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.

         When 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 default. Id.

         C. 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 § 974.06.

         The 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.

         Under 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.”)

         In the 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 ...

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