United States District Court, E.D. Wisconsin
VINCENT E. BOYD, Petitioner,
WARDEN SCOTT ECKSTEIN, Respondent.
STADTMUELLER U.S. DISTRICT JUDGE
February 22, 2018, Petitioner Vincent E. Boyd
(“Boyd”) filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, alleging that his
conviction and sentence were imposed in violation of the
Constitution and laws of the United States. (Docket #1). The
Court will now turn to screening the petition under Rule 4 of
the Rules Governing Section 2254 Proceedings. That Rule
authorizes a district court to conduct an initial screening
of habeas corpus petitions and to dismiss a petition
summarily where “it plainly appears from the face of
the petition. . .that the petitioner is not entitled to
relief.” This Rule provides the district court the
power to dismiss both those petitions that do not state a
claim upon which relief may be granted and those petitions
that are factually frivolous. See Small v. Endicott,
998 F.2d 411, 414 (7th Cir. 1993). Under Rule 4, the Court
analyzes preliminary obstacles to review, such as whether the
petitioner has complied with the statute of limitations,
exhausted available state remedies, avoided procedural
default, and set forth cognizable claims.
eve of trial, during the final pretrial conference, Boyd
fired his lawyer-the fourth that had been appointed for
him-and was permitted to proceed pro se. However,
the trial court appointed that same lawyer to serve as
Boyd's standby counsel. The court refused Boyd's
request to continue the trial date and instructed him that he
was “get no latitude” in cross-examining the
state's witnesses in light of his pro se status.
next day, prior to the start of trial, Boyd pled no-contest
to two counts of first degree sexual assault of a child in
Winnebago County Circuit Court Case No. 10CF344. Prior to
sentencing, Boyd filed a pro se motion to withdraw
the pleas, alleging he was pressured by the trial court's
refusal to adjourn the trial. The court then appointed a
different attorney to represent Boyd, who filed a second
motion to withdraw the pleas, arguing that the court had
erred in failing to hold a colloquy pursuant to State v.
Klessig, 564 N.W.2d 716 (Wis. 1997), to confirm that
Boyd knowingly, intelligently, and voluntarily waived his
right to the assistance of counsel.
trial court denied both motions. On June 15, 2012, Boyd was
sentenced to thirty years' initial confinement to be
followed by twenty years of extended supervision. He filed a
notice of intent to pursue post-conviction relief four days
later, on June 19, 2012.
first appeal, the Wisconsin Court of Appeals found that the
trial judge had indeed erred in failing to hold the colloquy
required by Klessig. Although Boyd thought this was
a sufficient reason for him to withdraw the pleas he entered,
the court disagreed. Instead, the appellate court remanded to
allow the trial court to hold the mandated colloquy. On
remand, the trial judge held an evidentiary hearing and found
the Klessig standard satisfied.
appealed again on April 14, 2014. This time, he argued that
he was entitled to withdraw his pleas because: (1) his right
to self-representation was violated in several ways,
including (a) by the appointment of standby counsel and the
trial court's failure to fully explain standby
counsel's role, (b) when standby counsel negotiated
Boyd's plea with the district attorney, and (c) in the
manner in which standby counsel interacted with the court
during the plea colloquy, including describing the contents
of the plea agreement and expressing an opinion that Boyd was
entering the pleas knowingly, intelligently, and voluntarily;
(2) he did not validly waive his right to counsel because his
choice was not voluntary and deliberate but was instead
premised upon pressure from his lack of preparedness for
trial and the trial court's refusal to continue the trial
date; (3) he was not competent to proceed without counsel;
and (4) the totality of the circumstances indicated that it
would be fair and just to allow him to withdraw his pleas.
None of these arguments convinced the Wisconsin Court of
Appeals, which affirmed his conviction on February 26, 2015.
The Wisconsin Supreme Court declined to exercise its
discretionary review on June 12, 2015.
March 16, 2016, Boyd filed a motion seeking post-conviction
relief, again on the basis that he should be allowed to
withdraw his no-contest pleas. His legal theory in this
motion was that he was provided ineffective assistance of
both trial and post-conviction counsel. Boyd believed that
trial counsel should have pursued additional grounds for plea
withdrawal, including that he was pressured by the trial
court's comment that he would receive “no
latitude” when cross-examining witnesses at trial, and
that counsel was ineffective for failing to procure all
relevant transcripts. He accused his post-conviction counsel
of being ineffective for failing to raise these deficiencies
in trial counsel's performance. The trial court denied
the motion, and the Wisconsin Court of Appeals affirmed in an
order dated August 23, 2017. The Wisconsin Supreme Court
denied Boyd's petition for review on December 12, 2017.
of its Rule 4 review, the Court first considers the
timeliness of the petition. A state prisoner in custody
pursuant to a state court judgment has one year from the date
“the judgment became final” to seek federal
habeas relief. 28 U.S.C. § 2244(d)(1)(A). A judgment
becomes final within the meaning of Section 2244(d)(1)(A)
when all direct appeals in the state courts are concluded
followed by either the completion or denial of certiorari
proceedings in the U.S. Supreme Court, or if certiorari is
not sought, at the expiration of the ninety days allowed for
filing for certiorari. See Ray v. Clements, 700 F.3d
993, 1003 (7th Cir. 2012).
it appears the petition is timely. By the Court's
calculation, although the gap between Boyd's second
appeal and his post-conviction motion was lengthy, that span,
plus the time that elapsed between the Wisconsin Supreme
Court's December 12, 2017 order and the filing of this
petition on February 22, 2018, amounts to 345 days, which is
just inside the one-year limitations period. Thus, the Court
cannot say at this early stage that the petition is plainly
barred by the statute of limitations.
the Court analyzes whether Boyd fully exhausted his state
court remedies. A district court may not address claims
raised in a 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).
Accordingly, a state prisoner is required to exhaust the
remedies available in state court before a district court
will consider the merits of a federal habeas petition. 28
U.S.C. § 2254(b)(1)(A); Dressler v. McCaughtry,
238 F.3d 908, 912 (7th Cir. 2001). A petitioner exhausts his
claim when he presents it to the highest state court for a
ruling on the merits. Lieberman v. Thomas, 505 F.3d
665, 669 (7th Cir. 2007) (citing Picard v. Connor,
404 U.S. 270, 275 (1971)); Perruquet v. Briley, 390
F.3d 505, 513 (7th Cir. 2004). Once the state's highest
court has had a full and fair opportunity to pass upon the
merits of the claim, a prisoner is not required to present to
that court again. Humphrey v. Cady, 405 U.S. 504,
516 n.18 (1972).
Boyd appears to have exhausted his remedies as to each of the
two claims he raises in his petition. First, he asserts that
his plea was not knowing, intelligent, and voluntary
“because of the events relating to standby
counsel-including negotiating [the] plea agreement, signing
[the] plea questionnaire, and opining that [the] plea was
voluntary- violated Boyd's right to self-representation.
(Docket #1 at 6-7). Second, Boyd contends that his plea was
not knowing, intelligent, and voluntary “because it was
induced, in party, by the court's pre-trial ruling that
Boyd would ‘get no latitude' during his
cross-examination of the state's witnesses at the trial
the next day.” Id. at 7-8. As the Court's
description of Boyd's appeals and post-conviction
proceedings makes clear, each of these claims was presented
for review at each level of the Wisconsin state courts. Thus,
for screening purposes, it appears he has exhausted his state
Court will now analyze whether Boyd has procedurally
defaulted on either of these claims. “A habeas
petitioner who has exhausted his state court remedies without
properly asserting his federal claim at each level of state
court review has procedurally defaulted that claim.”
Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir.
2004). Functionally, procedural default arises when the
petitioner either (1) failed to present his claim to the
state courts and it is clear that those courts would now hold
the claim procedurally barred, or (2) presented his claim to
the state courts but the state court dismissed the claim on
an independent and adequate state procedural ground.
Perruquet, 390 F.3d at 514; Moore v.
Bryant, 295 F.3d 771, 774 (7th Cir. 2002); Chambers
v. McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001).
Neither circumstance appears to have arisen in this case, and
so the Court will not dismiss Boyd's claims at this time
on the basis of procedural default.
Court concludes its Rule 4 review by screening for patently
frivolous claims in Boyd's petition. Ray, 700
F.3d at 996 n.1. Without expressing any opinion as to the
potential merit of ...