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Sulla v. Hepp

United States District Court, E.D. Wisconsin

March 14, 2019

RICHARD J. SULLA, Petitioner,
v.
RANDALL R. HEPP, Respondent.

          DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE.

         Richard J. Sulla, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Sulla alleges that his conviction for armed burglary and burglary is unconstitutional. For the reasons stated below, the petition for writ of habeas corpus will be denied and the case dismissed.

         BACKGROUND

         Sulla was charged in Jefferson County Circuit Court with one count of armed burglary, one count of conspiracy to commit arson, one count of burglary, and one count of operating a motor vehicle without the owner's consent, as a party to a crime, stemming from two burglaries and an arson. (State v. Sulla, 2013AP2316 (Wis. S.Ct. June 14, 2016), Answer, Docket # 10-3 at 441.) Sulla entered into a plea agreement with the State in which he agreed to plead no contest to the armed burglary and burglary charges, while the conspiracy to commit arson and operating a motor vehicle without the owner's consent charges would be dismissed and read into the record for purposes of sentencing and restitution. (Id.)

         Prior to entering his plea, Sulla read and signed a Plea Questionnaire/Waiver of Rights form, and the circuit court held a plea hearing. (Id.) At the plea hearing, the circuit court concluded that Sulla's pleas were knowing, voluntary, and intelligent, and ordered judgment to be entered accordingly. (Id. at 442.) Sulla was sentenced to twenty years of imprisonment, consisting of seven and a half years of initial confinement and seven and a half years of extended supervision for the armed burglary count and two and a half years of initial confinement and two and a half years of extended supervision for the burglary count, with the sentences running consecutively. (Judgment of Conviction, Answer, Docket # 10-2 at 33.)

         Sulla filed a motion for postconviction relief, seeking to withdraw his no contest pleas on the basis that his pleas were not made in a knowing, intelligent, and voluntary fashion. (Docket # 10-3 at 442.) Sulla argued that his pleas were unknowing because he “did not understand that for purposes of the read-in charge, he would effectively be considered to have committed the offense.” (Id.) In support of his motion, Sulla filed an affidavit, which stated, in pertinent part, “[M]y attorney [ ] told me that agreeing to the read-in offense of arson was not admitting guilt and that it was just something the Court would ‘look at' at sentencing. I did not understand and my Attorney did not explain the effect that a read-in offense has . . . .” (Id.)

         The circuit court denied Sulla's motion without an evidentiary hearing. (Id.) The circuit court concluded that Sulla was not entitled to an evidentiary hearing on his motion because his affidavit failed to allege sufficient facts which, if true, would entitle him to relief. (Id. at 443.) The circuit court further found that Sulla was not entitled to an evidentiary hearing because the record conclusively demonstrated that Sulla was not entitled to relief. (Id.) Sulla appealed, and the Wisconsin Court of Appeals reversed, finding that Sulla's motion did allege sufficient facts and further concluded that Sulla was entitled to an evidentiary hearing because the record did not conclusively demonstrate that Sulla understood the effect of the read-in charges at sentencing. (Id.) The State appealed and the Wisconsin Supreme Court accepted review. (Id.)

         The Wisconsin Supreme Court addressed the question whether the postconviction court was required to hold an evidentiary hearing before it determined whether Sulla had entered his pleas in a knowing, intelligent, and voluntary fashion. (Id.) The supreme court reversed the court of appeals, finding that the circuit court was not required to hold an evidentiary hearing before determining whether Sulla had knowingly, voluntarily, and intelligently entered his pleas. The supreme court further found that the circuit court properly exercised its discretion in denying the motion without a hearing. (Id. at 472.) The supreme court found that Sulla was not entitled to an evidentiary hearing on his motion to withdraw his plea because the record conclusively demonstrated that Sulla was correctly informed of and understood the effect of the read-in charges at sentencing. (Id.) Sulla timely filed a petition for writ of habeas corpus on July 14, 2017. (Docket # 1 at 13.)

         STANDARD OF REVIEW

         Sulla's petition is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a writ of habeas corpus may be granted if the state court decision on the merits of the petitioner's claim (1) was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. § 2254(d)(1); or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” 28 U.S.C. § 2254(d)(2).

         A state court's decision is “contrary to . . . clearly established Federal law as established by the United States Supreme Court” if it is “substantially different from relevant [Supreme Court] precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). The court of appeals for this circuit recognized the narrow application of the “contrary to” clause:

[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ of habeas corpus . . . where the state court applied a rule that contradicts the governing law as expounded in Supreme Court cases or where the state court confronts facts materially indistinguishable from a Supreme Court case and nevertheless arrives at a different result.

Washington, 219 F.3d at 628. The court further explained that the “unreasonable application of” clause was broader and “allows a federal habeas court to grant habeas relief whenever the state court ‘unreasonably applied [a clearly established] principle to the facts of the prisoner's case.'” Id. (quoting Williams, 529 U.S. at 413).

         To be unreasonable, a state court ruling must be more than simply “erroneous” and perhaps more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997). Under the “unreasonableness” standard, a state court's decision will stand “if it is one of several equally plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997). In Morgan v. Krenke, the court explained that:

Unreasonableness is judged by an objective standard, and under the “unreasonable application” clause, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”

232 F.3d 562, 565-66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411), cert. denied, 532 U.S. 951 (2001). Accordingly, before a court may issue a writ of habeas corpus, it must determine that the state court decision was both incorrect ...


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