United States District Court, W.D. Wisconsin
RICKY N. ALEXANDER, Petitioner,
GARY BOUGHTON, Respondent.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
petitioner Ricky Alexander, a state prisoner incarcerated at
the Wisconsin Secure Program Facility, seeks a writ of habeas
corpus under 28 U.S.C. § 2254. He challenges his 2011
state-court conviction for two counts of sexual assault of a
minor, asserting nine grounds for relief. The state contends
that five of Alexander's claims are procedurally
defaulted. It did not brief the merits of those claims.
Because I conclude that Alexander did not default on these
claims, I will order the state to provide additional briefing
on the merits.
before me are Alexander's motions for permission to
transfer to medium custody. Dkt. 16 and Dkt. 18. Alexander
now says that court does “not have to rule” on
the request to be transferred. Dkt. 25, at 4. I take
Alexander to mean that he no longer needs the relief sought
in his motions, so I will deny the motions as moot.
mistrial, Alexander was retried and convicted on April 1,
2011. He was appointed appellate counsel, who filed a
no-merit brief under Wis.Stat. § 809.32, Dkt. 14-2,
which is Wisconsin's procedure for implementing
Anders v. California, 386 U.S. 738 (1967). Alexander
responded, identifying several issues that he believed should
be addressed on appeal. Dkt. 14-3. The Wisconsin Court of
Appeals agreed with counsel that there was no arguable merit
to any appealable issues and affirmed the conviction. Dkt.
15-5. Alexander filed a petition for review with the
Wisconsin Supreme Court, Dkt. 14-5 and Dkt. 14-6, which was
summarily denied. Dkt. 14-7. He then filed a pro se motion
for postconviction relief under Wis.Stat. § 974.06,
which raised several issues that had already been raised
during the no-merit proceedings. The court of appeals held
that the claims were procedurally barred by Wis.Stat. §
974.06(4) and State v. Escalona-Naranjo, 185 Wis.2d
168, 517 N.W.2d 157 (1994).Dkt. 14-11.
on this litigation history, the state contends that many of
the issues raised in Alexander's habeas petition are
procedurally defaulted. First, the state contends that
Alexander did not fairly present his first ground for relief,
violation of the Double Jeopardy Clause, to the state
judiciary. It argues that although Alexander raised a double
jeopardy claim in response to his lawyer's no-merit
brief, he did not raise it in his petition for review to the
Wisconsin Supreme Court. Instead, Alexander asked the
Wisconsin Supreme Court to review whether his trial counsel
was ineffective for failing to raise a double jeopardy claim.
assertion that one's counsel was ineffective for failing
to pursue constitutional issues is a claim separate and
independent from those issues. Lewis v. Sternes, 390
F.3d 1019, 1026 (7th Cir. 2004). That being said, the Court
of Appeals for the Seventh Circuit has recognized two
situations where it is nonetheless appropriate for a federal
court to review the underlying constitutional claims. First,
“where ineffective assistance claims are presented
‘as a means to reach' the embedded claims and those
claims are the real substance of a petitioner's
challenge, we will consider them fairly presented.”
McGee v. Bartow, 593 F.3d 556, 567 n.9 (7th Cir.
2010) (citing Malone v. Walls, 538 F.3d 744, 755
(7th Cir. 2008)). Second, when the state court recognized the
embedded claim and denied it on the merits (regardless of
whether it was fairly presented), the claim may be reviewed
in federal court. Malone, 538 F.3d at 756.
first exception applies here. The Wisconsin Court of Appeals
considered the double jeopardy claim and ruled against it on
the merits. Dkt. 14-4, at 2. This was the final ruling on the
matter. Alexander then petitioned the Wisconsin Supreme Court
for review of that decision. He referred to this claim as a
claim for ineffective assistance of counsel in his
petition's list of “Issue[s] presented for
review.” Dkt. 14-6, at 5. But later, in the heading for
this section of his brief, he included two assertions: (1)
that counsel was ineffective for failing to seek dismissal on
double jeopardy grounds; and (2) that “Judges failed to
accept partial verdict.” Id. at 10. The second
assertion was a summary of his underlying double jeopardy
claim. Alexander then made arguments and cited cases
regarding that underlying claim. Id. at 10-12. Both
federal and Wisconsin state courts construe a pro se
litigant's filings liberally. Haines v. Kerner,
404 U.S. 519, 520-21 (1972) (per curiam); State v.
Romero-Georgana, 2014 WI 83, ¶ 69, 360 Wis.2d 522,
557, 849 N.W.2d 668, 685. And in this case, when the petition
is viewed as a whole and in the context of the order it was
appealing, it's clear that Alexander was seeking a ruling
on the underlying double jeopardy claim. The claim is not
barred from federal habeas review.
state next contends that Alexander's second, fourth, and
fifth grounds for relief- all ineffective assistance of trial
counsel claims-are procedurally defaulted because the state
court dismissed them under an adequate and independent state
procedural rule. The state argues that Alexander first raised
these claims in his pro se § 974.06 motion, that the
court of appeals held that they were barred under
Escalona-Naranjo for his failure to raise them
during the no-merit appeal, and that these claims are
therefore barred from federal habeas review. The state's
arguments fail for two reasons.
the state is incorrect when it asserts that Alexander first
raised these claims in his § 974.06 motion. All these
claims previously appeared in Alexander's brief in
opposition to his attorney's no-merit brief. See
Dkt. 14-3, at 12-15, 42-48, 53-54. Alexander was precluded
from raising those claims again in a subsequent § 974.06
motion, but procedural bars imposed after a claim was
properly exhausted do not bar federal review. See Page v.
Frank, 343 F.3d 901, 907 (7th Cir. 2003)
(“[f]ederal review is precluded only by procedural
forfeitures, not by res judicata concerns”) (quoting
Patrasso v. Nelson, 121 F.3d 297, 301 (7th
even if the state were correct that Alexander had failed to
raise these claims on direct appeal, they would still be
subject to federal review. A claim is defaulted when the
state court denied it based on an “adequate and
independent” state procedural rule. Johnson v.
Thurmer, 624 F.3d 786, 789 (7th Cir. 2010). In this
case, the state contends that Escalona-Naranjo is
such a rule. But the Court of Appeals for the Seventh Circuit
has repeatedly held that Escalona-Naranjo is not an
adequate basis for rejecting a claim for ineffective
assistance of counsel when the default was caused by the
petitioner failing to raise that claim during a no-merit
appeal. Johnson v. Thurmer, 624 F.3d 786, 789-91
(7th Cir. 2010); Page, 343 F.3d at 907- 09 (7th Cir.
2003). Because Alexander's appellate counsel filed a
no-merit brief in this case, any ineffective assistance of
counsel claims that Alexander failed to raise during the
no-merit proceeding would not be procedurally
the state contends Alexander defaulted on his ninth ground
for relief, ineffective assistance of postconviction counsel.
But the state's only argument is that the Wisconsin Court
of Appeals ruled against the claim on the merits. Dkt. 24, at
17-18. This does not support the state's contention that
Alexander defaulted on the claim. On the contrary, it
suggests he properly exhausted it.
none of Alexander's claims are barred from federal habeas
review. Because the state briefed the merits of only four of
the nine grounds raised in Alexander's habeas petition, 1
will order the state to provide additional briefing on the
merits of the other five ...