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Johnson v. Percy

United States District Court, E.D. Wisconsin

January 29, 2018

TERRANCE L. JOHNSON, Petitioner,
v.
WARDEN DOUGLAS PERCY, Respondent.

          DECISION AND ORDER

          NANCY JOSEPH United States Magistrate Judge.

         Terrance L. Johnson, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Johnson was convicted of four counts of uttering a forgery, six counts of identity theft, and three counts of theft by fraud. Johnson alleges that his conviction and sentence are unconstitutional on the grounds that the circuit court judge abused his discretion by resentencing him based upon erroneous information and that his resentencing violated double jeopardy protections. (Habeas Petition, Docket # 1.) The respondent has moved to dismiss Johnson's petition on the grounds that Johnson procedurally defaulted the claims in his petition. For the reasons stated below, the respondent's motion to dismiss is granted and the petition for writ of habeas corpus will be denied.

         BACKGROUND

         Following a jury trial, Johnson was convicted of three counts of theft by fraud, four counts of forgery, and five counts of identity theft, all as a party to a crime. The jury also found him guilty of an additional count of identity theft that did not include the party-to-a-crime modifier. (State v. Johnson, 2015AP673 (Wis. Ct. App. Sept. 28, 2016), Docket # 15-4.) At sentencing, the state recommended a sentence of ten years of initial confinement, followed by ten years of extended supervision. (Transcript of June 6, 2012 Sentencing Hearing, Docket # 1-3 at 15.) After going through the history of the case and Johnson's history, Milwaukee County Circuit Court Judge David A. Hansher said that based on all of that information, his evaluation of the case was that Johnson “deserved approximately 10 years overall of initial confinement and a period of extended supervision.” (Id. at 34.) Judge Hansher told Johnson that the state's recommendation was in line with what he had concluded and stated that he was going to follow the state's recommendation. (Id. at 34-35.)

         As the court noted in its Rule 4 Order, the sentencing transcript does not read very clearly and at “various points during the sentencing hearing, Judge Hansher questioned the prosecutor, or even questioned himself, about whether a sentence on a particular count ought to be consecutive or concurrent to sentences on other counts.” (Docket # 5 at 3.) However, Judge Hansher concluded that his intent was to sentence Johnson to ten years of initial confinement followed by ten years of extended supervision. (Docket # 1-3 at 41.) When the court issued its written judgment on June 8, 2012, the words “consecutive to all other counts” was listed in relation to count one, which “made it appear as though Judge Hansher had intended each of the sentences imposed on counts two through thirteen to run consecutively to the sentence imposed in count one, resulting in a sentence of far more than ten years.” (Docket # 5 at 5-6.)

         The Department of Corrections caught this and filed a letter seeking clarification as to the sentence structure for counts one and two. (Id. at 6.) The court issued an amended judgment on August 9, 2012, which removed the “consecutive to all other counts” language from count one. (Id.) Johnson filed a direct appeal, alleging that the evidence at trial was insufficient to support his convictions and that the State lacked jurisdiction as to five of those convictions. (Resp. Br. at 2, Docket # 15.) The Wisconsin Court of Appeals affirmed Johnson's judgment of conviction on July 29, 2014 in Appeal No. 2013AP1429. (Id.)

         In 2015, Johnson filed a Wis.Stat. § 974.06 motion in the circuit court, alleging that he had newly discovered evidence in the form of affidavits from several individuals allegedly admitting their involvement in the crimes of which Johnson was convicted, and contending that evidence showed that a police officer compelled one of the witnesses at Johnson's trial to lie. (Id. at 2-3.) The circuit court denied Johnson's motion and Johnson appealed. (Id. at 3.) This appeal became case no. 2015AP673. On February 1, 2016, the court of appeals remanded the case for fact finding, but retained jurisdiction over the appeal. (Docket # 15-3 at 6.) The court of appeals specifically ordered fact finding regarding the authenticity of the affidavits Johnson submitted as newly discovered evidence. (Id.)

         On February 2, 2016, Johnson filed a pro se motion with the circuit court seeking to amend his judgment of conviction to reflect Judge Hansher's intent to impose a ten year sentence. (Docket # 1-2.) In an order dated February 3, 2016, Milwaukee County Circuit Court Judge Dennis R. Cimpl amended Johnson's judgment of conviction. (Id.) In the order, Judge Cimpl noted that the Department of Corrections had informed the court that under the judgment, counts three through thirteen were running concurrently with each other and consecutive to count one, which resulted in a total sentence of six years of initial confinement and six years of extended supervision. (Id. at 2.) Judge Cimpl stated that was “not what Judge Hansher intended. He specifically intended to impose a sentence totally ten years of initial confinement and ten years of extended supervision.” (Id.)

         Johnson filed another pro se motion for sentence modification on May 9, 2016, which the court interpreted as a motion to reconsider its February 3, 2016 order. (Docket # 15-5 at 8.) Johnson alleged that the court's February 3, 2016 order increased the sentence imposed by Judge Hansher in violation of the Double Jeopardy Clauses of the United States and Wisconsin Constitutions. (Id.) The court denied Johnson's motion on June 2, 2016, stating that the court did not increase Judge Hansher's sentence; rather, the court found that Judge Hansher intended to impose an overall sentence of ten years of initial confinement and ten years of extended supervision and ordered the judgment of conviction amended to effectuate that intent. (Id.) Thus, the Double Jeopardy Clause was not implicated. (Id.) Johnson did not appeal this decision. (Resp. Br. at 3.)

         On September 28, 2016, the Wisconsin Court of Appeals affirmed the postconviction order denying Johnson relief as to his newly discovered evidence claim. (Docket # 15-4.) On October 3, 2016, Johnson filed a document in the court of appeals entitled “Motion for Relief.” (Docket # 15-5.) In the motion, Johnson argued that Judge Hansher sentenced him to six years of initial confinement and six years of extended supervision and that Judge Cimpl improperly increased his sentence to ten years of initial confinement and ten years of extended supervision. (Id. at 1.) Johnson noted that he did not file a timely appeal of Judge Cimpl's June 2, 2016 order because Johnson “was waiting for his appeal to be concluded [in case no. 2015AP673], and at which time Johnson was going to request that Judge Cimpl reconsider his decision increasing Johnsons [sic] sentence.” (Id. at 3.)

         On October 6, 2016, the court of appeals denied Johnson's “Motion for Relief.” (Docket # 15-6.) The court of appeals found that Johnson's “Motion for Relief” was asking the court to review circuit court orders entered on May 16, 2016 and June 2, 2016; however, Johnson never timely filed a notice of appeal of those orders. (Id. at 2.) The court of appeals noted that Johnson's motion showed that he made a strategic choice to file additional motions in circuit court rather than file a notice of appeal (i.e., Johnson stated that he was waiting for his appeal to conclude and was then going to file a motion for reconsideration). (Id.) Thus, the court of appeals found that Johnson's choice “provides no basis for this court to review an order from which Johnson has not appealed and that the circuit court entered after the appeal in this matter was well underway.” (Id.)

         On November 14, 2016, Johnson filed a state habeas corpus petition in the Wisconsin Supreme Court in case no. 2016AP2204. (Docket # 15-8.) Johnson raised the sentencing issue, alleging that his due process and double jeopardy rights were violated. (Id.) The Wisconsin Supreme Court denied Johnson's habeas petition on May 15, 2017. (Docket # 15-9.) Johnson filed a federal habeas corpus petition on November 30, 2016. (Docket # 1.)[1]

         ANALYSIS

         Johnson challenges Judge Cimpl's decision to amend his judgment of conviction to effectuate Judge Hansher's sentencing intent. Johnson argues Judge Cimpl abused his discretion and violated his double jeopardy protections. (Docket # 1.) The ...


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