United States District Court, W.D. Wisconsin
STEPHEN L. CROCKER MAGISTRATE JUDGE.
Shepler, an inmate at the Oshkosh Correctional Institution,
has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 and has paid the $5 filing fee. The
subject of the petition is petitioner's 2012 conviction
in the Circuit Court for Marathon County for first-degree
sexual assault and child enticement.
petition is before the court for preliminary review pursuant
to Rule 4 of the Rules Governing Section 2254 Cases. Rule 4
provides that when conducting this review,
[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner. If the petition is
not dismissed, the judge must order the respondent to file an
answer, motion, or other response within a fixed time, or to
take other action the judge may order.
initial review of habeas petitions, the court looks to see
whether the petitioner has set forth cognizable
constitutional or federal law claims, exhausted available
state remedies, and whether the petition is timely.
petition is very bare-bones, but he has attached exhibits
that help provide a better picture of his case. In reviewing
the petition, I have has also reviewed the Wisconsin Court of
Appeals' decision affirming petitioner's conviction.
As discussed in more detail below, those materials plainly
show that the petition is subject to dismissal on procedural
following facts are drawn from the state court of
appeals' decision on petitioner's direct appeal.
State v. Shepler, 366 Wis.2d 809, 874 N.W.2d 347
(Table), 2016 WI.App. 16, 2015 WL 9464667 (unpublished
disposition). In August 2012, Shepler was charged with two
counts of first-degree sexual assault of a child under
twelve, one count of second-degree sexual assault and two
counts of child enticement, when Shepler was just under age
eighteen. Before trial, the state moved to introduce
other-acts evidence concerning an allegation of sexual
assault of a four-year-old boy by Shepler in October 2005,
when he was 11. After conducting two hearings, the trial
court ruled that the other-acts evidence was admissible under
the test articulated by the Wisconsin Supreme Court in
State v. Sullivan, 216 Wis.2d 768, 576 N.W.2d 30
(1998). The state then presented a plea offer, which Shepler
accepted based on the advice of his lawyer. Under the
agreement, he pled guilty to one count of first-degree sexual
assault and one count of child enticement, and the other
counts were dismissed and read in. The court sentenced him to
15 years in prison.
filed a postconviction motion seeking to withdraw his plea on
the ground that his trial lawyer was ineffective for making
an inadequate Sullivan argument. After considering
the additional challenge to the other-acts evidence raised in
Shepler's postconviction motion, the trial court ruled
that it would have reached the same decision and allowed the
other-acts evidence even had it considered his new arguments.
Accordingly, it denied the motion.
appeal, Shepler sought reversal solely on the ground that the
trial court had erred in determining that the state's
other-acts evidence would be admissible at trial. After
noting that Shepler had waived his right to challenge the
trial court's evidentiary ruling when he entered his
guilty plea, the court of appeals nonetheless exercised its
discretion and reached the merits because the state had
responded to petitioner's argument. Shepler, n. 3. With
respect to the ineffective assistance claim that petitioner
had pursued in his postconviction motion, the court
found that petitioner had forfeited it by failing to raise it
court of appeals affirmed the conviction, ruling that the
circuit court had not abused its discretion in deciding that
the other-acts evidence was admissible. Petitioner did not
file a petition for review with the Wisconsin Supreme Court.
to 28 U.S.C. § 2254(b)(1)(A), a habeas petition shall
not be granted unless the petitioner “has exhausted the
remedies available in the courts of the State.” The
principles of comity underlying the exhaustion doctrine
require the petitioner to give the state courts a “full
and fair opportunity to resolve constitutional claims”
before raising those claims in a federal habeas petition.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). To comply with this requirement, the petitioner must
assert his claims through one complete round of state court
review. Id.; Lewis v. Sternes, 390 F.3d
1019, 1025-26 (7th Cir. 2004). For a Wisconsin prisoner, this
means that he must include his claims in a petition for
discretionary review with the Wisconsin Supreme Court.
Moore v. Casperson, 345 F.3d 474, 486 (7th Cir.
2003). Failure to do so constitutes a procedural default.
Boerckel, 526 U.S. at 848.
acknowledges that he did not file a petition for review with
the Wisconsin Supreme Court. Therefore, this court is
procedurally barred from considering the merits of his
petition unless petitioner can show either (1) cause for the
default and actual prejudice or (2) that failure to consider
the claims will result in a fundamental miscarriage of
justice. Thomas v. Williams, 822 F.3d 378, 386 (7th
Cir. 2016) (quoting Coleman v. Thompson, 501 U.S.
722, 750 (1991)). To show “cause, ” petitioner
must show that “some objective factor external to the
defense impeded counsel's [or petitioner's] efforts
to comply the State's procedural rule.” Murray
v. Carrier, 477 U.S. 478, 488 (1986). To invoke the