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Lewis v. Boughton

United States District Court, E.D. Wisconsin

March 27, 2019

JAMES ARNOLD LEWIS, Petitioner,
v.
GARY BOUGHTON, Respondent.

          DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          DAVID E. JONES UNITED STATES MAGISTRATE JUDGE.

         James 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 Program Facility.

         In 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.

         I. Background

         A. Circuit Court proceedings

         In 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.

         The 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.

         After 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 supervision.

         B. Post-conviction proceedings

         On 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.

         In 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.

         In 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. 5.

         C. Habeas proceedings

         On 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 relief:

(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 statement.
(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 ...

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