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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 his 2013 conviction for operating a vehicle while under the influence of an intoxicant (OWI). Adams contends that the sentencing judge violated his constitutional rights by enhancing his sentence based on two uncounseled OWI convictions from 1994 and 2004.

         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 the petition with this principle in mind, I conclude that Adams's habeas petition likely must be dismissed because it is procedurally defaulted and untimely. I will give Adams a short deadline to show cause why the case should not be dismissed.

         ALLEGATIONS OF FACT

         The following facts are drawn from the petition and state court records, some of which Adams attaches to his petition and others of which are available online.

         On February 16, 1994, Adams was charged with operating a vehicle while intoxicated (second offense) in Milwaukee County Circuit Court Case No. T-401233. Adams says that he requested appointment of counsel by the circuit court during his initial appearance, but was told he would have to return to court at a later date to determine whether he was eligible for appointed counsel. On April 12, 1994, Adams appeared without counsel and entered a guilty plea. He received a sentence of 80 days' imprisonment.

         On March 19, 2004, Adams was charged with operating a vehicle while intoxicated (fourth offense) in Waukesha County. See State of Wisconsin v. Paul A. Adams, 2004-CF-940, available at https://wcca.wicourts.gov. On May 4, 2004, he appeared without counsel and entered a plea of no contest. Although he signed a “waiver of attorney” statement on the day of the plea hearing, see Dkt. 1-1, at 59-61, Adams contends that he was not provided enough time to review and properly understand the documents he was signing.

         Fast forward to 2013. On December 30, Adams was charged in Waukesha County Circuit Court Case No. 13-CF-1535 with operating a vehicle while intoxicated (seventh offense). This time, he was represented by an attorney. On September 11, 2014, Adams pleaded no contest to the OWI charge on the advice of counsel. The sentencing judge relied on Adams's prior convictions in determining the sentence, including the uncounseled 1994 and 2004 convictions. He sentenced Adams to eight years in the state prison system-three years of initial confinement and five years of extended supervision-consecutive to the sentence he was already serving.

         Adams filed a notice of appeal on October 20, 2014. See State v. Paul A. Adams, 2014-AP-2506, available at https://wcca.wicourts.gov. For reasons that aren't clear, that appeal was dismissed in favor of further proceedings. See State v. Paul A. Adams, 2015-AP-2163, available at https://wcca.wicourts.gov. On August 12, 2015, Adams, by new counsel, filed a postconviction motion in the circuit court contending that his 2013 plea was involuntary and that his trial counsel was ineffective because neither the court nor his attorney checked his understanding of the elements of the offense. The circuit court held an evidentiary hearing on October 7, 2015 and denied the plea-withdrawal motion. Adams appealed his judgment of conviction and the denial of his postconviction motion to the court of appeals, which affirmed on December 28, 2016. See State v. Adams, 2017 WI.App. 7, 373 Wis.2d 309, 895 N.W.2d 103. The Wisconsin Supreme Court denied review on April 10, 2017. See State v. Adams, 2017 WI 47, 375 Wis.2d 130, 898 N.W.2d 583.

         On June 14, 2016, while Adams's direct appeal and postconviction motion remained pending before the state court of appeals, Adams filed two pro se motions with the circuit court under Wis.Stat. § 974.06, raising collateral challenges to the 1994 and 2004 uncounseled convictions for the first time. See Dkt. 1-1, at 25-89. On August 15, 2016, the circuit court denied the motions without reaching the merits, holding that Adams's case was “currently under appeal to the Court of Appeals and until a final decision has been passed down in the case, this Court does not have jurisdiction to hear new post-conviction collateral attack motions.” Id. at 21. Adams appealed this denial to the court of appeals. In his appellate briefs, Adams made two new assertions: (1) that he had “repeatedly urged” his trial attorney in the 2013 proceedings “to challenge two of his prior convictions on the basis that they were entered while he did not have counsel to represent him, ” and (2) that he made “repeated requests” that his appellate counsel in those proceedings “raise the issue of the sentence in this case being based upon prior convictions entered while Adams was unrepresented.” Dkt. 1-1, at 8. On December 13, 2017, the court of appeals summarily affirmed the circuit court's decision that it lacked jurisdiction to address Adams's postconviction motion. Id. at 121-23. The Wisconsin Supreme Court denied review on July 10, 2018. See State v. Adams, 2018 WI 92, 383 Wis.2d 624, 918 N.W.2d 431. Adams filed his petition with this court on November 28, 2018.

         ANALYSIS

         In his habeas petition, Adams contends that he is entitled to relief under 28 U.S.C. § 2254 because uncounseled OWI convictions were used to enhance the sentence he is currently serving, in violation of his Sixth Amendment rights. See Burgett v. Texas, 389 U.S. 109, 115 (1967) (convictions obtained in violation of a defendant's right to counsel cannot be used to support guilt or enhance punishment on a subsequent offense); but see Nichols v. United States, 511 U.S. 738, 746-47 (1994) (sentence enhancement based on uncounseled prior misdemeanor conviction that had not resulted in a term of incarceration did not violate the Sixth Amendment). But it is not clear that I can reach the merits of this claim for relief because his petition is both barred by the doctrine of procedural default and is untimely.

         A. Procedural default

         Before a prisoner can seek relief in federal court, he must first exhaust the remedies available to him in state court, 28 U.S.C. § 2254(b)(1)(A), “thereby giving the State the ‘opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (citation omitted)). To satisfy the doctrine of exhaustion, a habeas petitioner must “fully and fairly present” his claims in such a way as to give state appellate courts a meaningful opportunity to consider the substance of those claims and correct any mistakes. Picard v. Connor, 404 U.S. 270, 275 (1971); Curtis v. Montgomery, 552 F.3d 578, 582 (7th Cir. 2009). To “fully” present his claims, a petitioner must pursue all available avenues of relief and comply with the state's procedural requirement before turning to the ...


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