United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
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.
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.
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.
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.
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.
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
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.
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.
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 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 ...