United States District Court, E.D. Wisconsin
EMMIT R. HARRIS, Petitioner,
PAUL S. KEMPER, Warden, Racine Correctional Institution, Respondent.
DECISION AND ORDER
ADELMAN, District Judge.
March 11, 2002, Emmit Harris entered an Alford plea
in state court to one count of first-degree sexual assault of
a child and pleaded no contest to a second count of
first-degree sexual assault of a child and one count of
first-degree recklessly endangering safety. After Harris was
convicted and sentenced that June, he filed a notice of
intent to pursue post-conviction relief, but he never filed a
post-conviction motion or notice of appeal. Years later, on
December 6, 2016, Harris filed a petition for a writ of
habeas corpus in state court, which the state court promptly
dismissed. Then, on January 13, 2017, Harris filed a motion
in state court for relief pending appeal- although, as the
state court noted, there was no appeal pending in his
case-which the state court denied. Finally, Harris filed this
petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, arguing that he is in custody in violation of
the U.S. Constitution.
moves to dismiss Harris's petition arguing that the
procedural default doctrine bars federal review of his claims
because he did not fairly present them in state court and
cannot do so now. See Thomas v. Williams, 822 F.3d
378, 384 (7th Cir. 2016) (quoting Ward v. Jenkins,
613 F.3d 692, 696 (7th Cir. 2010)). Harris does not dispute
that his claims are procedurally defaulted, so he can only
proceed if his procedural default can be excused.
procedural default may be excused if he can show “cause
for the default and actual prejudice.” Id. at
386 (quoting Coleman v. Thompson, 501 U.S. 722, 750
(1991)). As cause for his default, Harris asserts that his
court-appointed attorney on direct appeal from his conviction
neglected his case and let important filing deadlines lapse.
Abandonment by counsel may constitute cause to excuse a
procedural default, but Harris has not shown that he was
“left without any functioning attorney of record,
” much less that he was “[g]iven no reason to
suspect that he lacked counsel able and willing to represent
him, ” as required to establish abandonment in this
context. See Maples v. Thomas, 565 U.S. 266, 288-89
of abandonment, constitutionally ineffective assistance of
counsel on direct appeal from a state criminal conviction may
provide cause to excuse a procedural default. But “a
claim of ineffective assistance” must “be
presented to the state courts as an independent claim before
it may be used to establish cause.” Murray v.
Carrier, 477 U.S. 478, 489 (1986). Harris did not fairly
present a claim of ineffective assistance of appellate
counsel to the state courts, so that claim is “itself .
. . procedurally defaulted.” Edwards v.
Carpenter, 529 U.S. 446, 453 (2000). As Harris has not
shown “that that procedural default may . . . be
excused, ” he cannot assert the ineffective assistance
of his appellate attorney as cause for the procedural default
of his other claims. See id.
from his attorney's neglect, Harris cites his history of
mental illness and intellectual disability as cause for his
failure to properly present and exhaust his claims in state
court. “The Supreme Court, ” though, “has
defined cause sufficient to excuse procedural default as
‘some objective factor external to the
defense' which precludes petitioner's ability to
pursue his claim in state court.” Harris v.
McAdory, 334 F.3d 665, 668 (7th Cir. 2003) (emphasis
added) (quoting Murray, 477 U.S. at 488). Mental
illness and disability-like “youth, lack of education,
and illiteracy”-are normally not considered
“factors . . . ‘external' to [the]
defense.” Id. at 669. Harris does not explain,
and I cannot discern, why this general rule would not apply
procedural default may yet be excused if he can show
“that failure to consider [his] claims will result in a
fundamental miscarriage of justice.” Thomas,
822 F.3d at 386 (quoting Coleman, 501 U.S. at 750).
To establish a fundamental miscarriage of justice, a
petitioner must show that “a constitutional violation
has probably resulted in the conviction of one who is
actually innocent.” Id. (quoting Schlup v.
Delo, 513 U.S. 298, 327 (1995)). Harris says that,
although he is innocent, he confessed to his crimes because a
detective violated his constitutional rights while
interrogating him-e.g., by ignoring his request for an
attorney. He also cites a recent clinical evaluation of his
intellectual disability as “new evidence” of his
vulnerability to coercion. Yet, Harris was convicted based on
his pleas, not his confession, and he does not explain how
the supposed constitutional violations that he describes
“resulted in” his conviction. Further,
Harris's arguments and evidence that he was vulnerable
and succumbed to unlawful coercion do little, if anything, to
suggest that his resulting confession was false, much less
that he is actually innocent. Thus, he does not show that
failure to consider his claims will result in a fundamental
miscarriage of justice.
IT IS ORDERED that respondent's motion to
dismiss (Docket No. 22) is GRANTED. The
Clerk of Court shall enter final judgment accordingly.
IS FURTHER ORDERED that a certificate of
appealability is DENIED.
IS FURTHER ORDERED that Harris's motion for an
order correcting his sentence ...