United States District Court, E.D. Wisconsin
THOMAS B. KROPP, Petitioner,
STATE OF WISCONSIN, BRAD D. SCHIMEL, and WARDEN BRIAN FOSTER, Respondents.
Stadtmueller U.S. District Judge.
April 27, 2018, Petitioner Thomas B. Kropp
(“Kropp”) 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 his
constitutional rights. (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.” The 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
March 2012, Kropp was charged with aggravated battery, in
violation of Wis.Stat. § 940.19(5), in Milwaukee County
Circuit Court Case No. 2012CF1246. The charge arose from a
physical altercation between Kropp and his friend, W.R., who
suffered severe injury at Kropp's hands. The jury found
Kropp guilty of the charge and he was sentenced to ten
years' imprisonment to be followed by five years of
judgment of conviction was issued on April 19, 2013. Kropp
filed a notice of intent to pursue post-conviction relief on
April 26. The motion for post-conviction relief was not
actually filed until May 29, 2014. In it, Kropp raised
allegations of ineffective assistance of trial counsel. The
motion was denied in the trial court on August 11, 2014
without a hearing pursuant to State v. Machner, 205
N.W.2d 905 (Wis. 1979). Kropp appealed, and the Wisconsin
Court of Appeals summarily reversed on November 6, 2015.
directing the trial court to hold a Machner hearing
on Kropp's ineffective-assistance claims. State v.
Kropp, 2014AP2070-CR, 2015 WL 13135147, at *2 (Wis. Ct.
App. Nov. 6, 2015).
trial court held the required hearing and again denied
Kropp's motion for post-conviction relief. That decision
was issued on April 28, 2016. Kropp appealed a second time.
The Wisconsin Court of Appeals affirmed the denial of
post-conviction relief in an order dated October 31, 2017.
State v. Kropp, 905 N.W.2d 843, 2017 WL 5037002
(Wis. Ct. App. Oct. 31, 2017). The Wisconsin Supreme Court
denied Kropp's petition for discretionary review on March
13, 2018. State v. Kropp, 380 Wis.2d 351 (Wis.
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. Kropp initiated his appeal
and post-conviction proceedings soon after entry of the
judgment of conviction. Those proceedings concluded on March
13, 2018. Kropp filed the instant petition just over a month
later. At the time he filed his petition, Kropp's habeas
clock had not even started to run again, since his 90-day
period for seeking certiorari to the Supreme Court had not
elapsed. Thus, the Court cannot say that the petition is
plainly barred by the statute of limitations.
the Court analyzes whether Kropp 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).
Kropp appears to have exhausted his remedies as to each of
the two claims he raises in his petition. First, Kropp
alleges that he received ineffective assistance of counsel
because his trial lawyer did not review W.R.'s medical
records, either herself or in collaboration with Kropp, and
did not use them at trial to impeach W.R. (Docket #1 at 7).
Kropp theorizes that the medical records could be used to
impeach W.R. and undermine his account of their altercation
because, as Kropp reads them, the records showed that W.R.
was highly intoxicated at the time of the altercation, that
he injured himself primarily because of a fall down some
stairs and not Kropp's beating, and that W.R.'s
injuries were not as severe as he claimed. See Id.
at 7-17. Kropp believes that proper review and use of the
medical records would have led to his acquittal, conviction
on a lesser offense, or a guilty plea. Id.
Kropp asserts that his trial counsel was ineffective in her
failure to communicate with him. Id. at 11-21. This
allegation broadly encompasses counsel's failure to
review W.R.'s medical records with Kropp, her failure to
meet with him and share other discovery materials produced by
the state, and her failure to communicate the state's
plea offers to him. Id. He contends that proper
communication would have given him information from which he
would have decided to plead guilty rather than proceed to
appears, at least at this early stage, that both of these
claims have been exhausted. Both of his theories of
ineffective assistance were advanced in the Wisconsin courts
and rejected. See Kropp, 2017 WL 5037002, at *3-4.
Thus, exhaustion of remedies does not appear to bar the
Court will now analyze whether Kropp has procedurally
defaulted on either of his 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 Kropp's claims at this time
on the basis of procedural default.
Court concludes its Rule 4 review by screening for patently
frivolous claims in Kropp's petition. Ray, 700
F.3d at 996 n.1. Without expressing any opinion as to the
potential merit of his claims, it does not plainly appear
that they are frivolous.
IT IS ORDERED that the parties shall proceed