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Glover v. Kemper

United States District Court, E.D. Wisconsin

July 24, 2019

RENAUL E. GLOVER SR., Petitioner,
PAUL KEMPER, Respondent.



         On 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.

         I. BACKGROUND

         The 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.

         A. Judge Duffin's Report and Recommendation (Dkt. No. 18)

         After 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)).

         Judge 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 Cir. 2016)).

         As for 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)).

         C. Petitioner's Response (Dkt. No. 19)

         On 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.

         D. Respondent's Objection (Dkt. No. 20)

         The 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).

         In the 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.

         The 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. at 10.

         II. ...

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