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Kropp v. State

United States District Court, E.D. Wisconsin

May 14, 2018

THOMAS B. KROPP, Petitioner,
v.
STATE OF WISCONSIN, BRAD D. SCHIMEL, and WARDEN BRIAN FOSTER, Respondents.

          ORDER

          J.P. Stadtmueller U.S. District Judge.

         On 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 cognizable claims.

         In 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 extended supervision.

         The 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).

         The 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. 2018).

         As part 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).

         Here, 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.

         Next, 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).

         Here, 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.

         Second, 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 trial. Id.

         It 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 present claims.[1]

         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.

         The 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.

         Accordingly, IT IS ORDERED that the parties shall proceed in ...


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