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Williams v. Tegels

United States District Court, W.D. Wisconsin

April 23, 2018

JIMMY LEE WILLIAMS, Petitioner,
v.
WARDEN L. TEGELS, Respondent.

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         In this petition for a writ of habeas corpus under 28 U.S.C. § 2254, prisoner Jimmy Lee Williams is challenging his 2015 conviction for second degree sexual assault of a child. He raises four grounds in his petition: (1) the circuit court erred by refusing to allow Williams to present evidence of the alleged victim's prior sexual conduct, in violation of the Due Process Clause; (2) the circuit court did not have jurisdiction because the criminal complaint was defective; (3) trial counsel provided ineffective assistance of counsel by pressuring him not to withdraw a no-contest plea; and (4) the circuit court relied on inaccurate information at sentencing.

         Accompanying Williams's petition is a motion to stay the case while Williams pursues a remedy in state court on several additional grounds: (1) the circuit court excluded Williams from a “pretrial conference” with trial counsel on April 27, 2015; (2) the circuit court held “off the record” discussions on three occasions; (3) after Williams withdrew his motion to withdraw his no-contest plea, the circuit court did not conduct another colloquy to ensure that Williams understood the rights he was waiving; and (4) both trial counsel and appellate counsel were ineffective for failing to raise the first three issues. Williams has also filed a motion for assistance in recruiting counsel.

         For the reasons discussed below, I am denying Williams's motions and dismissing the petition as meritless.

         ANALYSIS

         A. Motion to stay

         Under Rhines v. Weber, 544 U.S. 269, 277 (2005), a court may stay a habeas petition to allow a prisoner to exhaust state court remedies if: (1) the petitioner has good cause for his failure to exhaust his new claim before now; and (2) the claim is not plainly meritless. I will deny the motion because Williams has not satisfied either requirement.

         As an initial matter, Williams does not provide any justification for failing to raise these issues in state court sooner. Although Williams had counsel on appeal, that lawyer filed a “no merit” brief, leaving Williams free to raise any ground he wished. In fact, the four grounds asserted in his petition in this court were all grounds that he raised pro se on appeal. Williams also acknowledges that the Wisconsin Supreme Court denied his petition for review in March 2017 and he offers no reason for failing to raise new claims in the year that passed before he filed this petition.

         Regardless, none of Williams's new claims have merit. As to the claim that the circuit court and trial counsel had a “pretrial conference” outside his presence, the Due Process Clause does not guarantee the accused a right to attend every hearing. Rather, that right applies when the defendant's “presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” United States v. Segal, 495 F.3d 826, 837 (7th Cir. 2007) (quoting United States v. Gagnon, 470 U.S. 522, 526 (1985)). In this case, Williams does not allege that anything of significance occurred at the conference and it is difficult to see how it could have in light of Williams's decision to plead no contest. Williams does not allege that anything that occurred at the conference affected his decision to enter the plea.

         As to Williams's claim that the circuit court held “off the record” discussions on three occasions, Williams fails to explain what these discussions were about or how they prejudiced him. Regardless, Williams's claim is that the circuit court violated the Wisconsin Supreme Court Rules by failing to report the entire proceeding. Even if this is true, that would be a violation of state law, which cannot be raised in a § 2254 petition. Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996).

         Williams's third new claim relates to the somewhat unusual circumstances surrounding his decision to enter a no-contest plea. After Williams entered his plea, he obtained new counsel and moved to withdraw his plea. But before the circuit court acted on that motion, Williams withdrew it. Williams says that the circuit court should have conducted a colloquy with him after he withdrew his motion, but he admits that the court had already conducted a colloquy when he entered his original plea and he does not identify any deficiencies in that colloquy. Williams says the original colloquy was “voided, ” but his own allegations show that is incorrect. Williams admits that he withdrew his motion to withdraw his plea before the circuit ruled on the motion, so nothing was “voided” except that motion. Williams identifies no reason why it would be necessary to engage in a second colloquy under those circumstances.

         Finally, because I have rejected each of Williams's first three new claims as meritless, it follows necessarily that he cannot prevail on his fourth new claim, which is that his counsel was ineffective for failing to raise these issues. Counsel does not act deficiently by failing to raise a meritless issue.

         Because Williams has not shown good cause for failing to raise his new claims in state court sooner and none of the claims have merit, I will deny the request for a stay.

         B. ...


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