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Pruett v. Smith

United States District Court, W.D. Wisconsin

July 9, 2018

DARRYL WAYNE PRUETT, Petitioner,
v.
JUDY P. SMITH, Warden, Respondent.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         Darryl Wayne Pruett has petitioned this court for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his December 3, 2008, judgment of conviction in the Circuit Court for Trempeauleau County, Wisconsin, for sexual assault of a child under the age of 16 and for repeated sexual assault of a child. In orders entered on April 7 and July 25, 2016 (Dkt. ## 8, 10), this court found that Pruett's claims in Count 1 of his petition that the circuit court judge was biased and in Count 4 that his sentence amounted to cruel and unusual punishment were barred under the procedural default doctrine. However, the court allowed petitioner to proceed on Counts 2 and 3, claiming, respectively, that: (1) a false rape allegation caused the judge to double the sentence requested by the prosecutor; and (2) the State brought two felonies against him with respect to the same event, making it appear that he was a habitual offender. The state subsequently responded to both claims as directed by the court. After considering the parties' briefs, the petition and documents of record, the court will dismiss the remaining claims in Pruett's petition for the reasons stated below.

         BACKGROUND

         On June 23, 2008, Pruett pled guilty in the Circuit Court for Trempeauleau County to one count of sexual assault of a child under sixteen years of age in violation of Wis.Stat. § 948.02(2), and one count of repeated sexual assault of a child in violation of Wis.Stat. § 948.025(1)(b). Pruett received two concurrent sentences of 9 years imprisonment to be followed by 4 years of extended supervision. He is also prohibited from contact with minors. Pruett is currently serving the extended supervision portion of his sentence.

         After sentencing, Pruett filed a postconviction motion claiming ineffective assistance of trial counsel based on his failure to: (1) pursue a not guilty by reason of mental disease (“NGI”) defense; (2) make a multiplicity objection with respect to the charges filed against him; and (3) object to a statement about a rape by the victim in the presentence investigation report (“PSI”). After considering an additional mental health evaluation Pruett submitted by a Dr. Patricia Stanik, the circuit court rejected each of his ineffective assistance of counsel arguments. The Wisconsin Court of Appeals affirmed that ruling in State v. Pruett, 344 Wis.2d 298, ¶ 1, 821 N.W.2d 413 (Table), 2012 WL 3176401, 2012 WI.App. 106 (Aug. 7, 2012)(unpublished opinion). As to the three claims of ineffective assistance set forth above, the court reasoned: (1) Dr. Stanik's report did not meet the statutory NGI standard; (2) the multiplicity argument failed because the complaint supported the premise that there were three separate acts of sexual assault; and (3) the statement by the victim in the PSI report did not impact the sentence. Id. ¶¶ 11, 12, 13. The Wisconsin Supreme Court denied review. State v. Pruett, 346 Wis.2d 284, 827 N.W.2d 374 (Table), 2013 WI 22 (Feb. 11, 2013).

         Pruett then filed a Motion for Post-Conviction Relief under Wis.Stat. § 974.06, seeking to withdraw his guilty plea based on his trial counsel failing to pursue an NGI defense. The circuit court also denied that motion, and Pruett appealed the decision to the Wisconsin Court of Appeals, arguing that: (1) the circuit court judge should have recused himself because of bias; (2) his trial counsel was ineffective for failing to present an NGI defense; and (3) Pruett established sufficient cause to allow him to raise the ineffective assistance of counsel claim despite the procedural bar set forth in State v. Escalona-Naranjo, 185 Wis.2d 168, 181-82 (1994). The court of appeals rejected each of his arguments. As for his bias argument, the court found it procedurally barred because he had not raised it previously. State v. Pruett, 354 Wis.2d 759, ¶ 5, 869 N.W.2d 170 (Table), 2015 WL 4079150, 2015 WI.App. 68 (July 7, 2015) (citing State v. Evans, 2004 WI 84, ¶ 33, 273 Wis.2d 192, 682, N.W.2d 784). As for the ineffective assistance of counsel arguments, the court rejected them because issues previously decided on appeal cannot be relitigated. Id. ¶ 6 (citing State v. Witkowski, 163 Wis.2d 985, 900, 473 N.W.2d 512 (Ct. App. 1991)). While Pruett filed a motion for reconsideration, it was denied on July 20, 2015, and a subsequent petition for review was denied by the Wisconsin Supreme Court on October 8, 2015.

         Pruett filed this pending habeas corpus petition in November 2015. On April 7, 2016, this court reviewed the petition and determined that it presented four claims for relief: (1) the circuit court judge was biased; (2) a false rape allegation permitted the judge to double the sentence requested by the prosecutor; (3) the State brought two felonies against Pruett with respect to the same event, making it appear that he was a habitual offender; and (4) the punishment constituted cruel and unusual punishment because the judge sentenced him for “imaginary” crimes against his son because his sentence prohibits contact with him. (Dkt. #8, at 2-3.) As previously explained, the court dismissed Counts 1 and 4 on grounds of procedural default, while ordering the state to respond to the remaining two Counts. (Dkt. #10.)

         OPINION

         I. Impact of Rape Allegation

         As noted previously, Pruett alleges in Count 2 of the petition that a “false ‘rape' allegation helped [the] judge go outside sentencing guidelines in doubling sentence DA wanted.” (Dkt. #1, at 7.) The state construes this as a claim of judicial bias, (Opp'n Br. (dkt. #24) at 7), arguing that it must be dismissed under the procedural default doctrine because Pruett failed to properly raise that claim during state court proceedings.

         Insofar as Pruett may be asserting a claim of judicial bias, the court agrees the claim is procedurally defaulted for the reasons stated in this court's previous orders. As noted in those orders, Pruett did not raise a bias claim in his initial post-conviction motion, causing the state appellate court to find the claim procedurally defaulted under State v. Escalona-Naranjo, 185 Wis.2d 168, 181-82, 517 N.W.2d 157 (1994), when Pruett later tried to raise it in his Wis.Stat. § 974.06 collateral attack. See Pruett, 354 Wis.2d 759, ¶ 5, 869 N.W.2d 170 (Table), 2015 WL 4079150, 2015 WI.App. 68) (July 7, 2015) (finding Pruett's judicial bias claims to be procedurally barred because he had failed to assert a sufficient reason for not raising the claim on direct appeal).

         To the extent that the petitioner seeks to present a claim previously dismissed by state courts on a state procedural ground, a federal court is precluded from reaching the merits of that claim provided the state court's rule is independent of a federal question and adequate to support the judgment. Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002). The law set forth in Wis.Stat. § 974.06 and Escalona-Naranjo has been recognized as an “independent and adequate state law ground of procedural default.” See Perry v. McCaughtry, 308 F.3d 682, 692 (7th Cir. 2002). Because Pruett has shown neither cause for nor prejudice resulting from his default, nor made a showing of actual innocence, this court has no basis to excuse his default in state court. See Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir. 2010)(“A federal court on collateral review will not entertain a procedurally defaulted constitutional claim unless the petitioner can establish cause and prejudice for the default or that the failure to consider the claim would result in a fundamental miscarriage of justice”). Assuming Count 2 purports to be a claim of judicial bias, then this court cannot consider the claim on the merits.[1]

         That being said, the court is not convinced that Pruett is only arguing judicial bias in Count 2. More likely Pruett seeks to reassert his claim, raised initially on direct appeal from his conviction and denied on the merits by the state court, that his trial counsel was ineffective for failing to object to a statement by the victim in the Presentence Investigation. See Pruett, 2012 WI.App. 106, ¶ 13 (“Pruett also argues that trial counsel was ineffective for failing to object to a statement by the victim in the PSI” stating that she thought Pruett might have raped her in her sleep). Regardless, giving petitioner the benefit of the doubt, the court will so construe this to be his claim.

         Even under this more generous construction, however, Pruett still is not entitled to habeas relief. Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court may grant a petition for habeas corpus only if the state court's ruling on the federal constitutional question “‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,' or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Campbell v. Reardon, 880 F.3d 857, 863-64 (7th Cir. 2015) (quoting 28 U.S.C. § 2254(d)). On its face, this standard is obviously “‘difficult to meet' and ‘highly deferential.'” Id. (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). Indeed, a petitioner “must show that the state court's ruling on the claim being presented in ...


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