United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING PETITION FOR WRIT OF
E. JONES UNITED STATES MAGISTRATE JUDGE.
Arnold Lewis was charged in Wisconsin state court with
sexually assaulting his girlfriend's six-year-old
daughter on multiple occasions, convicted by a jury, and
sentenced to thirty-six years' imprisonment. After his
direct appeal concluded, Mr. Lewis filed a state collateral
attack, arguing that his request for new counsel should have
been granted and bringing new claims of ineffective
assistance of trial and appellate counsel. The state courts
held that Mr. Lewis's claims were procedurally barred
because they could have been raised during his direct appeal
and because Mr. Lewis failed to provide a sufficient reason
for not pursuing them in that earlier proceeding. Mr. Lewis
is currently serving his sentence at the Wisconsin Secure
March 2018, Mr. Lewis filed a federal habeas petition
alleging that his custody violates the Sixth and Fourteenth
Amendments to the United States Constitution. Gary Boughton,
Warden of the Wisconsin Secure Program Facility, argues that
Mr. Lewis's petition should be dismissed because all of
its claims are procedurally defaulted, and Mr. Lewis cannot
excuse his defaults. The Court agrees. Because the state
courts expressly relied on adequate and independent state
grounds to reject Mr. Lewis's claims, and because Mr.
Lewis has failed to provide a sufficient excuse for his
default, this Court is procedurally barred from reaching the
merits of those claims on federal habeas review. The Court
therefore will deny Mr. Lewis's petition.
Circuit Court proceedings
January 2012, James Lewis was charged in Milwaukee County
Circuit Court with sexually assaulting L.M.A., his
girlfriend's six-year-old daughter. See Exhibit
106 to Petitioner's Reply Brief Addressing Procedural
Default, ECF No. 23-1 at 55-56. Specifically, the State of
Wisconsin charged Mr. Lewis with four counts of first-degree
sexual assault of a child, all occurring between August 17,
2011, and December 29, 2011. Id. Mr. Lewis was
charged in Counts 1, 2, and 3 with assaulting L.M.A. at her
“granny's house, ” located on North 77th
Court in the City of Milwaukee. See id.; see
also Exhibit 3 to Respondent's Response Brief
Addressing Procedural Default, ECF No. 21-3 at 11. Count 4
charged Mr. Lewis with assaulting L.M.A. at an apartment she
and her family briefly lived in on West Silver Spring Drive
in Milwaukee. See Pet'r's Reply Ex. 106, ECF
No. 23-1 at 56.
case proceeded to trial. The jury heard testimony from
L.M.A., L.M.A's mother, other members of L.M.A.'s
family, Mr. Lewis, police officers, and a health care
provider. See Exhibit 1 to Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 By a Person
in State Custody, ECF No. 1-1 at 2; see also State v.
Lewis, Appeal No. 2014AP1824-CR, 2015 Wisc. App. LEXIS
489, at *2 (Wis. Ct. App. July 7, 2015). At the close of the
State's case, the trial court granted the State's
motion to amend the location of Count 4 to “a motel, in
the City of Milwaukee.” See Pet'r's
Reply Ex. 106, ECF No. 23-1 at 58. The parties also agreed to
use August 1, 2011, as the amended starting date for all four
counts. See Pet. Ex. 1, ECF No. 1-1 at 3. The
Amended Information, however, was not read to the jury.
See Id. at 3-4.
deadlocking on Count 4, the jury requested to review a
videotaped interview of L.M.A. that was conducted shortly
after she disclosed the assaults in December 2011.
Id. at 4. The parties agreed this was permissible,
and so the jury re-watched a portion of L.M.A.'s
interview. The jury subsequently found Mr. Lewis guilty of
all four counts. He was sentenced to a total of twenty-six
years of initial confinement and ten years of extended
direct appeal, Mr. Lewis argued “that he should receive
a new trial because several errors in the verdicts and jury
instructions denied him the right to a unanimous
verdict.” Pet. Ex. 1, ECF No. 1-1 at 4 (citation
omitted). The Wisconsin Court of Appeals rejected this
argument and affirmed Mr. Lewis's judgment of conviction.
See Id. at 5-9. The Wisconsin Supreme Court denied
Mr. Lewis's petition for review. See Id. at 10.
Mr. Lewis did not file a petition for certiorari with the
United States Supreme Court. See Petition for Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2254 By a
Person in State Custody 4, ECF No. 1.
August 2016, Mr. Lewis filed a pro se motion for
post-conviction relief pursuant to Wis.Stat. § 974.06.
See Exhibit 1 to Resp't's Br., ECF No. 21-1.
Mr. Lewis argued that the trial court erred in denying his
request for new counsel, his trial lawyer provided
ineffective assistance of counsel in multiple ways, and his
post-conviction lawyer provided ineffective assistance by
failing to allege that trial counsel performed deficiently.
Id. The Circuit Court denied the motion without a
hearing. See Exhibit 2 to Resp't's Br., ECF
No. 21-2. The Wisconsin Court of Appeals affirmed, finding
that Mr. Lewis “[had] not identified a basis to
overcome application of the
Escalona-Naranjo bar to his
Wis.Stat. § 974.06 motion.” See Exhibit 4
to Resp't's Br., ECF No. 21-4 at 6. Thereafter, the
appellate court denied Mr. Lewis's motion for
reconsideration, Pet. Ex. 1, ECF No. 1-1 at 25, and the
Wisconsin Supreme Court denied Mr. Lewis's petition for
review, id. at 26.
February 2018, Mr. Lewis filed a second motion for
post-conviction relief, this time claiming that newly
discovered evidence warranted a new trial. See Id.
at 27. The purported new evidence consisted of: (1) a letter
from the Salvation Army indicating that L.M.A. and her family
had stayed in an emergency shelter from August 2, 2011, until
September 1, 2011; (2) a copy of a motel receipt issued to
Mr. Lewis from the Midpoint Motel for the dates of September
2, 2011, to September 9, 2011; and (3) a copy of Milwaukee
County Jail booking records reflecting that Mr. Lewis was in
custody from September 3, 2011, until September 19, 2011.
See Exhibit 11 to Resp't's Br., ECF No.
21-11. The Circuit Court denied the motion, finding that Mr.
Lewis was negligent in failing to seek this “new”
evidence prior to filing his first pro se motion and that Mr.
Lewis failed to demonstrate that he likely would have been
acquitted if the evidence had been presented at trial.
See Pet. Ex. 1, ECF No. 1-1 at 27-28. Mr. Lewis did
not seek further review of that decision. See Pet.
March 7, 2018, Mr. Lewis filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, alleging
that he is in custody in violation of the United States
Constitution because his trial lawyer provided ineffective
assistance of counsel and his due-process rights were
violated in various respects. See Pet. 6-9; see
also Attachment to Pet., ECF No. 1 at 10-18.
Specifically, Mr. Lewis alleged eleven different grounds for
(1) The court erred when it forced Lewis to go to trial with
an attorney in which Lewis had irreconcilable differences.
(2) Lewis was denied effective assistance of counsel . . .
when trial counsel failed to object when the State requested
to amend the location of count 4.
(3) Trial counsel was ineffective when he failed to seek out
and to present exculpatory evidence that would have shown
Lewis to be in jail during the time he was accused of
sexually assaulting LMW in the motel.
(4) Lewis was denied effective assistance of counsel . . .
when trial counsel failed to request an adjournment or
mistrial after the State was allowed to amend count 4.
(5) Lewis was denied due process of law . . ., as well as the
right to effective assistance of counsel . . . when trial
counsel alluded to Lewis's guilt during his opening
(6) Lewis was denied the right to effective assistance of
counsel when trial counsel brought out testimony, on
cross-examination, used by the State to bolster its case.
(7) Lewis was denied due process of law . . . when the Court
failed to read the amended Count Four to the jury . . .; as
well as the right to effective assistance of counsel . . .
when trial counsel failed to object to the amended
information not being read.
(8) Lewis was denied effective assistance of counsel when
trial counsel failed to present witnesses at trial because he
subpoenaed the ...