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Carter v. Foster

United States District Court, E.D. Wisconsin

March 25, 2019

LEON CARTER, Petitioner,
v.
BRIAN FOSTER, Respondent.

          ORDER ADOPTING JUDGE DUFFIN'S RECOMMENDATION (DKT. NO. 20), GRANTING MOTION TO WITHDRAW INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM (DKT. NO. 21) AND DENYING MOTION TO DISMISS (DKT. NO. 13)

          HON. PAMELA PEPPER United States District Judge.

         On October 30, 2017, Leon G. Carter filed a petition for a writ of habeas corpus under 28 U.S.C. §2254, challenging his February 2013 conviction. Dkt. No. 1. In January 2018, the respondent filed a motion to dismiss the petition, arguing that the petitioner had failed to exhaust one of his claims in state court. Dkt. No. 13. On January 2, 2019, Judge Duffin recommended that this court grant the motion unless the petitioner either withdrew his unexhausted claim or asked the court to stay proceedings while he returned to state court to exhaust it. Dkt. No. 20. The petitioner has asked the court to allow him to withdraw the unexhausted claim. Dkt. No. 21. The court grants that motion, denies the motion to dismiss and lays out next steps.

         I. BACKGROUND

         A. Procedural History

         On February 19, 2013, a jury in Milwaukee County Circuit Court convicted the petitioner of four counts of sexual assault, one count of strangulation and suffocation and one count of kidnapping. Dkt. No. 1 at 2. The trial judge sentenced the petitioner to sixty-three years of confinement followed by twenty-three years of extended supervision. Id. The petitioner appealed the conviction and sentence. Id. at 3.

         The petitioner says that on appeal, he argued that the trial court had erred in denying his Shiffra motion, [1] in failing to conduct a retrospective inquiry and in denying his motion for a mistrial based on ex parte communications with the bailiff. Id. On October 16, 2014, the petitioner's appellate lawyer filed a no-merit brief, concluding that the issues of “whether the trial court's sentence was excessive, ” “whether [the petitioner] received a fair trial at which there was sufficient evidence for a finding of guilt” and “whether [the petitioner] received effective assistance of counsel” did not have appellate merit. Dkt. No. 14-4 at 4, 43. The petitioner objected, although he explained that he wasn't able to provide an extensive objection because the fellow inmate who'd been helping him no longer was willing to do so. Dkt. No. 14-5. In response to the court's order directing him to address some issues in more detail, appellate counsel submitted a supplemental brief, opining that additional issues-whether the trial court erred in granting the state's “other acts” motion and whether the petitioner was prejudiced by his Department of Corrections' agent's testimonial reference to “sex offenders”-had no appellate merit. Dkt. No. 14-6. The Court of Appeals summarily affirmed the conviction on November 5, 2015. Dkt. No. 14-3.

         On March 7, 2016, the petitioner sought review in the Wisconsin Supreme Court, arguing that the Court of Appeals had denied him his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment right to a meaningful appeal when it accepted what the petitioner characterized as an “inadequate no-merit report.” Dkt. No. 1 at 3. On May 5, 2016, the Wisconsin Supreme Court denied review. Id. The petitioner filed a petition for a writ of certiorari with the United States Supreme Court on July 28, 2016, again arguing that the Court of Appeals had violated his Sixth and Fourteenth Amendment rights. Id. at 4. The Supreme Court denied review on November 28, 2016. Id.

         B. Federal Habeas Petition (Dkt. No. 1)

         The petition alleged that the Court of Appeals denied the petitioner his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment right to a meaningful appeal when it accepted the no-merit reports “without an independent review and analysis of several meritorious claims.” Dkt. No. 1 at 6. Judge Duffin screened the petition under Rule 4 of the Rules Governing §2254 Cases and stated that the petitioner had alleged two claims, a Sixth Amendment claim for ineffective assistance of counsel and a Fourteenth Amendment claim for denial of the right to a meaningful appeal. Dkt. No. 9. Judge Duffin ordered the respondent to either answer the petition or file a motion to dismiss within 60 days. Id. at 2.

         C. Respondent's Motion to Dismiss (Dkt. No. 13)

         On January 4, 2018, the respondent moved to dismiss the petition on the ground that the petitioner had not exhausted the Sixth Amendment ineffective assistance of appellate counsel claim in state court. Dkt. No. 13. The respondent argued that the petitioner had an available state remedy to challenge whether his appellate counsel was ineffective-he could file a “Knight petition.” Dkt. No. 14 at 4 (citing State v. Knight, 168 Wis.2d 509, 512-13 (Wis. 1992)). The respondent noted that while the petitioner had presented the ineffective assistance claim to the Wisconsin Supreme Court, Knight required him to present it to the Wisconsin Court of Appeals, and he had not done so. Id. at 5. The respondent argued that because the petitioner had not exhausted the ineffective assistance claim, he had filed a “mixed” petition-a petition that contained both an exhausted and an unexhausted claim-which could not proceed in federal court. Id. at 4 (citing Rose v. Lundy, 455 U.S. 509, 510 (1982)).

         The petitioner responded that his petition was not “mixed.” Dkt. No. 15. He contended that his only claim was that the Court of Appeals had not followed the no-merit procedures from Anders v. California, 386 U.S. 738 (1967); he stated that he had no independent claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). Id. at 6.

         The respondent replied that this argument “improperly combine[d] his claims in an attempt at skirting his exhaustion defect.” Dkt. No. 17 at 1. The respondent reiterated that the petitioner had stated a Sixth Amendment claim, which state law required him to raise through a writ of habeas corpus in the appellate court that had considered the appeal. Id. at 2 (citing Knight, 168 Wis.2d at 512-13). The respondent argued that the “essence” of the petitioner's federal habeas claim was that his appellate counsel was ineffective, and that he had never raised that claim with the Wisconsin Court of Appeals. Id. at 3.

         D. Judge Duffin's ...


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