United States District Court, E.D. Wisconsin
PETER J. LONG, Petitioner,
DOUGLAS PERCY, Respondent.
SCREENING HABEAS PETITION (DKT. NO. 1) AND REQUIRING
THE RESPONDENT TO FILE AN ANSWER OR OTHERWISE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
April 19, 2017, Peter J. Long, who is proceeding without a
lawyer, filed a petition for writ of habeas corpus under 28
U.S.C. §2254, challenging his August 23, 2013, judgment
of conviction in Washington County Circuit Court for his
eighth operating while intoxicated offense. Dkt. No. 1. He
has paid the $5.00 filing fee. This order screens the
petition under Rule 4 of the Rules Governing Section 2254
Cases. Because it does not plainly appear from the face of
the petition that the petitioner is not entitled to relief,
the court will order the respondent to answer or otherwise
petitioner pled guilty after the court denied his motion to
suppress, and the court sentenced him to a ten-year
bifurcated sentenced (five years prison and five years
extended supervision) on August 22, 2013. Dkt. No. 1-1 at 2.
The petitioner filed a direct appeal, arguing that the
circuit court erred in denying his motion to suppress.
Id. at 3. The Wisconsin Court of Appeals affirmed
the judgment of conviction on December 23, 2014, and denied
the petitioner's motion for reconsideration.
Id.; Dkt. No. 1-1 at 18. The Wisconsin Supreme Court
denied his petition for review on May 11, 2015. Dkt. No. 1 at
petitioner returned to the circuit court on a Wis.Stat.
§974.06 motion on August 12, 2015, seeking to withdraw
his guilty plea. Id. at 4. The circuit conducted a
Machner hearing on January 8, 2016 and heard from two
witnesses: petitioner's trial counsel and his appellate
counsel. Id.; Dkt. No. 1-1 at 18. The petitioner did
not testify. Id. at 19. The circuit court denied his
§974.06 motion on May 17, 2016. Dkt. No. 1 at 4. The
Wisconsin Court of Appeals affirmed the appeal from the
circuit court's order on February 22, 2017. Dkt. No. 1-1
at 26. The Wisconsin Supreme Court denied his petition for
review on April 10, 2017. Dkt. No. 1-1 at 36.
Rule 4 Screening
Standard Rule 4 of the Rules Governing §2254 Proceedings
If it plainly appears form the face of 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.
allows a habeas petition to proceed unless it is clear to the
court that the petitioner is not entitled to relief in the
district court. At the screening stage, the court expresses
no view of the merits of any of the petitioner's claims.
Rather, the court reviews the petition and exhibits to
determine whether the petitioner alleges he is in custody in
violation of the “Constitution or laws or treaties of
the United States.” 28 U.S.C. §2254(a). If the
state court denied the petition on the merits, this court can
grant the petition only if the petitioner is in custody as a
result of: (1) “a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the United States Supreme
Court;” or (2) “a decision that was based on an
unreasonable application determination of the facts in light
of the evidence presented in the state court
proceeding.” 28 U.S.C. §2254(d).
court also considers whether the petitioner filed within the
limitations period, exhausted his state court remedies and
avoided procedural default. Generally, a state prisoner must
file his habeas petition within one year of the judgment
becoming final. 28 U.S.C. §2254(d)(1)(A). In addition,
the state prisoner must exhaust the remedies available in the
state courts before the district court may consider the
merits of his federal petition. 28 U.S.C.
§2254(b)(1)(A). If the district court discovers that the
petitioner has included an unexhausted claim, the petitioner
either must return to state court to exhaust the claim or
amend his petition to present only the exhausted claims. Rose
v. Lundy, 455 U.S. 509, 510 (1982).
even if a petitioner has exhausted a claim, the district
court may still be barred from considering the claim if the
petitioner failed to raise the claim in the state's
highest court in a timely fashion or in the manner prescribed
by the state's procedural laws. See O'Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999); Thomas v. McCaughtry, 201
F.3d 995, 1000 (7th Cir. 2000)
petitioner alleges four grounds for relief: (1) Wis.Stat.
§346.65(2) violates the ex post facto clause by
including previously adjudicated traffic violations in its
“offense count”; (2) Wis.Stat. §346.65(2)
violates the due process clause; (3) the state courts
violated his due process rights by failing to apply Supreme
Court case law to his “warrantless, nonconsensual blood
draw”; and (4) ineffective assistance of counsel. Dkt.
No. 1 at 6-37. The petitioner argues that the escalating
penalty scale of Wisconsin's OWI statute, Wis.Stat.
§346.65(2) violates the ex post facto clause and his due
process rights because it changed the law to increase
penalties based on the total lifetime number of convictions.
Previously the statute counted the total number of
suspensions, revocations and convictions over a five-year
period. City of Eau Claire v. Booth, 370 Wis.2d 595, 612
(2016). The petitioner also argues that the failure to obtain
a warrant for the blood draw-after he refused to submit to
the draw- violated Missouri v. McNeely, 569 U.S. 141 (2013)
(holding that the natural metabolization of alcohol does not
present a per se exigency that justifies and exception to the
Fourth Amendment's search warrant requirement for
nonconsensual blood testing in all drunk-driving cases).
the petitioner's ineffective assistance arguments focus
on trial and appellate counsel. With respect to trial
counsel, the petitioner argues that counsel failed to: (1)
raise the issue of the warrantless blood draw; (2) raise the
Community Caretaker Function argument; (3) challenge the lack
of reasonable suspicion for the stop; (4) challenge the lack
of probable cause for the arrest; and (5) call as a witness
the woman who made the anonymous phone call to the police
regarding the petitioner. According to the petitioner,
appellate counsel failed to raise the blood ...