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Adams v. Tegels

United States District Court, W.D. Wisconsin

April 30, 2019

PAUL ADAMS, Petitioner,
v.
LIZI TEGELS, Respondent.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Pro se petitioner Paul Adams, a state inmate confined at Jackson Correctional Institution, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction entered in the Circuit Court for Waukesha County, Wisconsin. On March 2, 2009, he pleaded no contest to a charge of operating a vehicle while under the influence of an intoxicant (OWI) in violation of Wis.Stat. § 346.63(1)(a). He now challenges that conviction on four grounds: (1) he did not make a knowing and intelligent plea; (2) the state failed to disclose potentially exculpatory surveillance footage; (3) his trial-court counsel was ineffective; and (4) actual innocence.

         Adams has paid the $5 filing fee, and the case is now before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, I must dismiss the petition “if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Because Adams is appearing pro se, I must read the allegations generously, reviewing them under “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 521 (1972). Having reviewed Adams's petition with this principle in mind, I conclude that it must be dismissed because it seeks to challenge a conviction for which Adams is no longer in custody for purposes of § 2254, and because it is untimely.

         ALLEGATIONS OF FACT

         The following facts are drawn from the petition and state court records, which Adams attaches to his petition, as well as publicly available records.

         On September 8, 2008, Adams was arrested at a Pick ‘n Save store in Waukesha, Wisconsin after he allegedly parked his car in the fire lane, entered the store, and attempted to steal a bottle of liquor. He was charged in Waukesha County Circuit Court Case No. 08-CF-992 with operating while intoxicated (fifth or sixth), operating with a prohibited alcohol concentration (fifth or sixth), and retail theft.

         On March 2, 2009, the day before the scheduled trial, Adams's lawyer, Ronald Sonderhouse, withdrew Adams's speedy-trial request and requested that the court hold a plea hearing and sentencing in “about a month” because Adams had “quite a bit of documentation . . . to present to the Court for sentencing consideration.” Dkt. 1-6, at 52. The judge denied the request, explaining that he was “not inclined to adjourn the trial . . . in anticipation of a plea.” Id. at 53. Sonderhouse asked for and was granted a brief recess to confer with Adams, after which Adams entered a plea of no contest to the OWI charge in exchange for dismissal of the remaining charges.

         On March 30, 2009, Adams was sentenced to five years in the state prison system- two years of initial confinement and three years of extended supervision. Judgment was entered on March 31. Adams did not pursue a direct appeal of his conviction. The Wisconsin “Offender Locator” website indicates that he was released on extended supervision in March of 2010, but that he was re-incarcerated on new charges a few months later. See https://appsdoc.wi.gov/lop/.

         In December 2013, Adams was charged in Waukesha County Circuit Court Case No. 13-CF-1535 with an OWI (seventh offense)-the offense for which he is now in custody. He pleaded no contest to that charge and was sentenced to eight years in the state prison system- three years of initial confinement and five years of extended supervision. See Adams v. Tegels, No. 18-cv-982-JDP, Dkt. 1-1, at 6-7 (W.D. Wis. filed Nov. 28, 2018) (summarizing the procedural history of Case No. 13-CF-1535).

         On July 1, 2015, Adams wrote to the Waukesha Police Department requesting a copy of the surveillance footage of the Pick ‘n Save parking lot that police allegedly reviewed prior to his September 2008 arrest, presumably for the purpose of challenging the 2009 conviction. The department responded that the store had never provided a copy of the videotape and that as a result no footage of the incident existed.

         On June 14, 2016, Adams filed a motion for postconviction relief under Wis.Stat. § 974.06 in Waukesha County Circuit Court, asserting five grounds for relief:

(1) The circuit court's refusal to grant a continuance and comments indicating that Adams must enter a plea at the March 2, 2009 hearing constituted judicial participation on the plea-bargaining process, in violation of Adams's right to due process;
(2) The state failed to comply with defense counsel's repeated requests for a copy of the video surveillance tape, in violation of Adams's right to due process;
(3) The plea colloquy was insufficient for the circuit court to make an independent determination that Adams understood the constitutional rights he was waiving and the elements of the charge to which he was ...

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