United States District Court, E.D. Wisconsin
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)
PAMELA PEPPER United States District Judge.
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.
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.
petitioner says that on appeal, he argued that the trial
court had erred in denying his Shiffra motion,
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.
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.
Federal Habeas Petition (Dkt. No. 1)
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.
Respondent's Motion to Dismiss (Dkt. No. 13)
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)).
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.
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.
Judge Duffin's ...