United States District Court, E.D. Wisconsin
RENAUL E. GLOVER SR., Petitioner,
PAUL KEMPER, Respondent.
ORDER OVERRULING OBJECTION (DKT. NO. 20), ADOPTING
JUDGE DUFFIN'S RECOMMENDATION (DKT. NO. 18), GRANTING IN
PART ANDDENYING IN PART RESPONDENT'S MOTION TO DISMISS
(DKT. NO. 13) AND ORDERING RESPONDENT TO RESPOND TO GROUND
ONE OF PETITION
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
March 1, 2018, the petitioner filed a petition for writ of
habeas corpus under 28 U.S.C. §2254. Dkt. No.
1. Magistrate Judge William E. Duffin screened the petition
under Rule 4 of the Rules Governing Section §2254 Cases
and allowed the petitioner to proceed on all of his asserted
grounds for relief. Dkt. No. 6. Because one of the parties
didn't consent to Judge Duffin's authority to decide
the case, the Clerk of Court transferred the case to this
court. The respondent filed a motion to dismiss the petition,
dkt. no. 13, and this court referred the motion back to Judge
Duffin for a report and recommendation, dkt. no. 15. He
issued that report and recommendation on January 9, 2019,
recommending that this court deny the motion to dismiss as to
Ground One, but grant it as to Grounds Two and Three. Dkt.
No. 18. On January 18, 2019, the respondent objected to part
of the recommendation, arguing that the court should grant
the motion to dismiss Ground One. Dkt. No. 20. The petitioner
also filed a response to Judge Duffin, informing the court
that he did not oppose Judge Duffin's recommendation.
Dkt. No. 19. The court overrules the respondent's
objection, adopts Judge Duffin's report and
recommendation, and orders the respondent to respond to
ground one of the petition.
petition challenged the petitioner's 2013 conviction in
Kenosha County Circuit Court for burglary, theft and bail
jumping. Dkt. No. 1 at 1. It listed “Ground One”
as “[the petitioner's] attorney failed to move to
suppress the evidence obtained from the overly-broad warrant
and excessive execution.” Dkt. No. 1 at 6. He listed
“Ground Two” as “[the petitioner] was
denied the effective assistance of counsel where his attorney
failed to move to suppress the improper identifications of
Eric and Gretchen S.” Id. at 7. He listed
“Ground Three” as “[petitioner's]
counsel was ineffective for failing to object when the State
improperly bolstered the credibility of its lead detective in
closing by relying on facts not in evidence.”
Id. at 8. In his screening order, Judge Duffin
construed each of these grounds as “ineffective
assistance of counsel” claims arising under the Sixth
Amendment. Dkt. No. 6 at 2. In his brief supporting his
motion to dismiss Ground One, the respondent argued that the
petitioner had procedurally defaulted his claims by not
fairly presenting any of them in his petition for review to
the Wisconsin Supreme Court. Dkt. No. 14.
Judge Duffin's Report and Recommendation (Dkt.
reviewing the respondent's arguments, Judge Duffin
recounted the law mandating that federal habeas
petitioners “fairly present” their claims in
state court before presenting them in federal court. Dkt. No.
18 at 2 (quoting King v. Pfister, 834 F.3d 808,
815-16 (7th Cir. 2016)). He noted that the exhaustion
requirement mandated that a petitioner “fairly
present” the issues at each and every level of the
state court system. Id. at 2-3 (quoting
King, 834 F.3d at 816). Judge Duffin observed that
“fair presentment does not necessarily require that the
federal claim be presented explicitly; rather, it requires
only that ‘the substance of a federal habeas corpus
claim must first be presented to the state
courts.'” Id. at 3 (quoting Picard v.
Connor, 404 U.S. 270, 278 (1971)).
Duffin found that the petitioner had fairly presented Ground
One in state court. Id. at 8. He observed that the
petitioner explicitly had brought his claim for
“ineffective assistance of counsel for failing to move
to suppress the evidence obtained pursuant to the allegedly
overbroad search warrant” in both a circuit court
post-conviction motion and in his pleadings to the Wisconsin
Court of Appeals. Id. at 4. As for whether the
petition for review to the Wisconsin Supreme Court had
properly presented Ground One, Judge Duffin reasoned that
while the petition did not cite the Sixth Amendment, “a
reader familiar with criminal appellate procedure (which
would surely include any Wisconsin Supreme Court justice)
would have readily recognized from the petition for review
that the claim was being presented in the context of a claim
for ineffective assistance of counsel.” Id. at
5. He found that petition for review had sufficiently alerted
the Wisconsin Supreme Court “‘to the federal
constitutional nature of the issue to permit it to resolve
that issue on a federal basis.'” Id. at 8
(quoting Whatley v. Zatecky, 833 F.3d 762, 771 (7th
the petitioner's other two grounds for federal
habeas relief, Judge Duffin concluded that the
Wisconsin Supreme Court petition did not provide a sufficient
factual basis for the Wisconsin Supreme Court to consider
those claims. Id. at 8-9. Accordingly, “the
Wisconsin Supreme Court would not have understood or
appreciated the nature of Glover's latter two
claims.” Id. at 9. Judge Duffin found that the
petitioner had procedurally defaulted on Grounds Two and
Three-ineffective assistance for failure to challenge witness
identification and ineffective assistance for failure to
object to bolstering argument at closing. Id. Judge
Duffin remarked that the petitioner had not advanced any
arguments to excuse his procedural default of Grounds Two and
Three, concluding that “any such argument to have been
waived.” Id. at 9 (citing United States v.
Melgar, 227 F.3d 1038, 1040 (7th Cir. 2000)).
Petitioner's Response (Dkt. No. 19)
January 18, 2019, the court received a one-page letter from
the petitioner. Dkt. No. 19. The letter stated:
PLEASE TAKE NOTICE, that the above said petitioner is hereby
responding to the court's decision in No. 18-CV-315. The
petitioner is in full agreement with the court decision &
order regarding the fact that my trial counsel was
ineffective for not filing a requested motion to suppress.
However, I will be awaiting to hear from the respondents as
to their position on the court's order. If this case is
reversed and remanded back to the circuit court of Kenosha
county, the petitioner will be requesting for the trial court
to appoint counsel at county expense pursuant to sections
977.08(1)-(5)-Stat. Until then, I will again await to hear
from this court and the respondents, as I thank you for your
time in this matter.
Dkt. No. 19.
Respondent's Objection (Dkt. No. 20)
same day the court received the petitioner's letter, it
received the respondent's partial objection to the report
and recommendation, asking this court to dismiss Ground One
as procedurally defaulted. Dkt. No. 20 at 1. The respondent
argued that Judge Duffin erred in concluding that the
Wisconsin Supreme Court would have recognized the
petitioner's Fourth Amendment arguments as arising
through a Sixth Amendment gateway. Dkt. No. 20 at 3-4. The
respondent contended that the Wisconsin Supreme Court could
have thought that the petitioner was presenting novel,
stand-alone Fourth Amendment claims that had not been
litigated in the courts below. Id. (citing State
v. Griffith, 236 Wis.2d 48 (Wis. 2000); State v.
Wilson, 376 Wis.2d 92 (Wis. 2017); and State v.
Inglin, 224 Wis.2d 764, 767, n. 2 (Wis. Ct. App. 1999)
as cases where Wisconsin appellate courts elected to review
otherwise waived issues).
respondent's view, the petitioner re-formulated his claim
from a Sixth Amendment claim in the Court of Appeals to a
Fourth Amendment Claim in his petition to the Wisconsin
Supreme Court. Id. at 4-5. The respondent asserted
that the petitioner re-formulated his claim from a Fourth
Amendment claim back to a Sixth Amendment claim in
his federal habeas petition. Dkt. No. 20 at 5. The
respondent cited Novak v. Kemper, No. 16-CV-1116
(E.D. Wis. 2017) as a case in which Judge Joseph “found
an ineffective assistance claim procedurally defaulted on
indistinguishable facts[.]” Id. at 6. He says
that, like the petition in Novak, the petition for
review here cited only Fourth Amendment cases, did not
mention ineffective assistance of counsel in his
“issues presented” section, and mentioned
ineffective assistance of counsel only in passing when
discussing the background of the case. Id. 7.
respondent also re-argued points that he made to Judge Duffin
about fair presentment. Id. at 8. He characterized
the petitioner as making “passing references” to
ineffective assistance of counsel in his petition for review.
Id. He argues that Hicks v. Hepp, 871 F.3d
513, 531-32 (7th Cir. 2017) compels the conclusion that the
petitioner procedurally defaulted his claim; the
petitioner's “attempt to raise his Ground One
ineffective assistance claim fell far below the
petitioner's inadequate effort in Hicks.”
Id. at 9. The respondent asked this court find that
the petitioner fell short of fair presentment. Id.