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Ortiz-Mondragon v. Symdon

United States District Court, E.D. Wisconsin

January 25, 2019

FERNANDO ORTIZ-MONDRAGON, Petitioner,
v.
DENISE SYMDON, Respondent.

          DECISION AND ORDER

          NANCY JOSEPH, UNITED STATES MAGISTRATE JUDGE

         Fernando Ortiz-Mondragon seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Ortiz-Mondragon pled no contest to substantial battery, criminal damage to property, and disorderly conduct, all with a domestic abuse enhancer. (Habeas Pet., Docket # 1 at 2.) Ortiz-Mondragon alleges that his conviction and sentence were unconstitutional. For the reasons stated below, the petition for writ of habeas corpus will be denied. However, I will grant a certificate of appealability.

         BACKGROUND

         Ortiz-Mondragon came to the United States from Mexico in 1997, and moved to Wisconsin in 2002. (Answer, Ex. 9, State v. Ortiz-Mondragon, 2015 WI 73, No. 2013AP2435 (Wis. July 9, 2015), Docket # 7-9 at 6.) He has four children, all of whom are United States citizens and Wisconsin residents. (Id.)

         According to the criminal complaint, in September 2012, Ortiz-Mondragon violently attacked J.S., who was his cohabiting girlfriend at the time and who is the mother of two of his children. (Id. at 7.) Ortiz-Mondragon became enraged because J.S. was talking to a male neighbor on the phone. (Id.) Ortiz-Mondragon jumped on top of J.S. while she was talking on the phone in bed. (Id.) Ortiz-Mondragon put his hands around J.S.'s neck and began squeezing. (Id.) J.S. had trouble breathing and thought that Ortiz-Mondragon was going to kill her. (Id.) When J.S. managed to get off the bed and tried to leave the room, Ortiz-Mondragon punched her in the face and mouth and hit her in the back of the head. (Id.) J.S.'s head bled profusely. (Id.) Ortiz-Mondragon also broke J.S.'s phone in half. (Id.) When J.S. later sought treatment for her injuries, a wound on her face required five staples. (Id.) Their two young children were in the room at the time of the incident. (Id.)

         On September 14, 2012, Ortiz-Mondragon was charged with substantial battery, false imprisonment, felony intimidation of a victim, criminal damage to property, and disorderly conduct, all with a domestic abuse enhancer under Wis.Stat. § 968.075. (Id. at 6.) The State made a plea offer to Ortiz-Mondragon, that if he would plead guilty or no contest to substantial battery, criminal damage to property, and disorderly conduct, all with a domestic abuse enhancer, the State would dismiss and read-in the other charges. (Id. at 7.) The State would recommend three years of probation and four months in jail as a condition of probation. (Id.)

         At the circuit court plea and sentencing hearing on November 27, 2012, Ortiz-Mondragon's attorney informed the court that he had presented the State's plea offer to Ortiz-Mondragon, “given him paperwork to use to study it, given him information to use in counseling, and [Ortiz-Mondragon] has just now confirmed that now he's made his final decision. He would like to take the offer.” (Id. at 8.) Counsel then handed the plea questionnaire and waiver of rights form, along with some other papers, to the court. (Id.) Ortiz-Mondragon had signed the plea questionnaire and waiver of rights form, which stated, inter alia: “I understand that if I am not a citizen of the United States, my plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law.” (Id.) Counsel had signed the plea questionnaire and waiver of rights form immediately below the following affirmation: “I am the attorney for the defendant. I have discussed this document and any attachments with the defendant. I believe the defendant understands it and the plea agreement. The defendant is making this plea freely, voluntarily, and intelligently.” (Id.)

         Ortiz-Mondragon stated that he wished to plead no contest to three counts pursuant to the plea agreement. (Id.) The circuit court then informed him of the possible immigration consequences of his pleas:

THE COURT: All right. The law requires I address you now and advise you of the following: If you're not a citizen of the United States, the plea you offer me could result in your deportation, the exclusion of admission, or the denial of naturalization under federal law. . . .
These are collateral consequences to [sic] on top of whatever I sentence you to. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: All right. Do you still wish to offer me these pleas then?
THE DEFENDANT: Yes.

(Id. at 9.) The circuit court then confirmed that Ortiz-Mondragon and his attorney had discussed the plea questionnaire and waiver of rights form, which contained a warning about possible immigration consequences of a conviction:

THE COURT: All right. In my right hand I have a plea-questionnaire-and-waiver-of-rights form. I have the standard jury instruction for the charge of substantial battery with intent to cause bodily harm as well as the elements of criminal damage and disorderly conduct. Do you see all these documents?
THE DEFENDANT: Yes.
THE COURT: Did you sign the plea questionnaire?
THE DEFENDANT: Yes.
THE COURT: Before you signed it, did you read it over carefully?
THE DEFENDANT: Yes.
THE COURT: And while you were going over all these documents, did you have an opportunity to fully discuss it with your attorney [. . .]?
THE DEFENDANT: Yes.
THE COURT: And are you satisfied with his representation thus far?
THE DEFENDANT: Yes.

(Id. at 9-10.) The court concluded: “I'm going to find the defendant's pleas today to be freely, voluntarily, and intelligently entered on the record I have made. I'll incorporate in support of that the plea-questionnaire-and-waiver-of-rights form.” (Id. at 10.) The court then determined that the facts supported Ortiz-Mondragon's pleas and judged him ...


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