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Smith v. Kemper

United States District Court, E.D. Wisconsin

February 20, 2018

LARRY SMITH, Petitioner,
v.
WARDEN PAUL KEMPER, Defendant.

          ORDER DENYING MOTION TO HOLD ISSUE IN ABEYANCE (DKT. NO. 4), DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 5), DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DISMISSING CASE

          HON PAMELA PEPPER JUDGE

         On March 24, 2017, petitioner Larry Smith filed a seventeen-page petition for writ of habeas corpus, challenging his January 14, 2005 conviction on one count of first-degree sexual assault, use of a dangerous weapon. Dkt. No. 1. Because the petitioner did not file on the form required by Civil Local Rule 9(a)(1) (E.D. Wis.), the court ordered him to refile his petition (on the proper form) by June 30, 2017. Dkt. No. 3. The court did not receive the amended petition until July 5, 2017. Dkt. No. 5. On that same date, the court also received the plaintiff's “motion to hold issues in abeyance.” Dkt. No. 4. In the motion, the petitioner asserted that “each issue has not been fully exhausted concerning his 2005 judgment of conviction and the petitioner would like to go back to the state court's to properly exhaust all of his claims.”[1]Id. The court denies that motion, and dismisses the petition for failure to exhaust.

         I. Standard Governing Habeas Review

         Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts authorizes a district court to conduct an initial screening of a habeas corpus petition, and to dismiss a petition where “it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief.” At this early stage, the court reviews the petition (and any exhibits attached to it) to determine whether the petitioner has stated constitutional or federal law claims that are cognizable on habeas review, whether he has exhausted his claims in the state court system, and whether he has procedurally defaulted.

         II. History of the Case

         In his amended petition, the petitioner states that he “pled not guilty to first degree sexual assault while armed” but “pled guilty to having sex (consential) [sic] with the victim of the home invasion in course of armed robbery.” Dkt. No. 5 at 2. The public docket for the petitioner's state court case, however, shows that the petitioner pled guilty to first degree sexual assault/use of a dangerous weapon in violation of Wis.Stat. §940.225(1)(b). State v. Smith, Milwaukee County Circuit Court, Case No. 04CF002710 (available electronically at https://wcca.wicourts.gov). On January 13, 2005, the circuit court judge sentenced the petitioner serve an indeterminate term of no more than thirty years in prison (with credit for 232 days already served). Id.

         The petitioner filed a notice of appeal on July 29, 2005. State v. Smith, Wisconsin Court of Appeals, Case No. 2005AP001929 (available electronically at https://wscca.wicourts.gov). His counsel filed a brief and appendix on November 10, 2005, id.; the plaintiff indicates that his attorney filed a “no merit report, ” dkt. no. 5 at 3. On April 12, 2006, the Wisconsin Court of Appeals affirmed the conviction in a three-page, summary disposition. State v. Smith, Wisconsin Court of Appeals, Case No. 2005AP001929 (available electronically at https://wcca.wicourts.gov). On August 31, 2006, the Wisconsin Supreme Court denied his petition for review. Id.

         The petitioner reports that on October 27, 2009, he filed a post-conviction motion under Wis.Stat. §974.06. Dkt. No. 5 at 4; Smith, Milwaukee County Circuit Court, Case No. 04CF002710 (available electronically at https://wscca.wicourts.gov). The petitioner says that in that motion, he raised the following issues: that his post-conviction/appellate counsel provided ineffective assistance of counsel, “withdrawal of guilty plea” and “ex post facto violation within the charges of first degree sexual assault while armed.” Dkt. No. 5 at 4. The court denied his motion on November 9, 2009.[2] Smith, Milwaukee County Circuit Court, Case No. 04CF002710 (available electronically at https://wcca.wicourts.gov). The petitioner did not appeal that decision.

         Four and a half years later, on April 7, 2014, the petitioner filed a petition for habeas corpus in the Wisconsin Court of Appeals. Smith v. Humphreys, Wisconsin Court of Appeals, Case No. 2014AP000746 (available electronically at https://wscca.wicourts.gov). The petitioner indicates that he filed this petition under State v. Knight, 168 Wis.2d 509 (Wis. 1992), arguing “ineffective appellate counsel, guilty plea not knowing or voluntarily entered, plea colloquy defective, prosecution and trial court failed to find factual basis for plea.” Dkt. No. 5 at 5. The Wisconsin Court of Appeals denied that petition on February 20, 2015. Smith v. Humphreys, Wisconsin Court of Appeals, Case No. 2014AP000746 (available electronically at https://wscca.wicourts.gov). The petitioner not appeal that decision. Id.

         Two years later, on March 24, 2017, the court received the original habeas petition here in federal court. Dkt. No. 1. The court received the amended petition on July 5, 2017. Dkt. No. 5. In the amended petition, the petitioner claims that his Fifth, Sixth and Fourteenth Amendment rights and his constitutional due process rights were violated “when the state failed to put forth evidence of use of dangerous weapon or lack of consent to the crime of first degree sexual assault.” Id. at 6. He also asserts that the trial court violated his Fifth, Sixth, Eighth and Fourteenth amendment rights by “going against the facts of the plea entered by the petitioner and the prosecutor-also resulting in appellate counsel being ineffective.” Id. at 8.

         III. Facts Underlying Conviction

         The petitioner explains that he and his co-defendants robbed a drug house. Id. at 7. He says that each of his co-defendants had a pistol, but that he did not, because his co-defendants did not trust him with a gun. Id. He says that while the robbery was taking place, the victim approached him (because he was unarmed), and asked him “to have sex with her in exchange that no one in the house be harmed.” Id. The petitioner says that during his plea hearing, he admitted that he was “wrong for having sex with the robbery victim during the course of the robbery, ” but that he told the court that the sex was consensual and that he did not use a weapon to force the victim to have sex. Id. According to the petitioner, the circuit court judge agreed with his version of the facts during the plea hearing. Id. at 9. At sentencing, however, the circuit judge stated that the victim “'may have' believed that the petitioner had control over the other robbers, ” and “determined that the sex was forced on the victim with the use of a dangerous weapon . . . .” Id. The petitioner argues that the trial court “went against the facts that all parties stipulated to” and gave him thirty years “based on the unsupported facts.” Id.

         IV. Motion to Hold in Abeyance

         In his motion to hold issues in abeyance, the petitioner asks the court to place all issues in abeyance because “each issue has not been fully exhausted concerning his 2005 judgment of conviction and the petitioner would like to go back to the state court's to properly exhaust all of his claims.” Dkt. No. 4 at 1. In the amended petition (which the court received on the same day as the motion), the petitioner asserts that “[a]ll parties overlooked the substantial constitutional violation committed by the trial court, ” and that the “appellate ...


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