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Fierro v. Smith

United States District Court, E.D. Wisconsin

August 27, 2019

DANIEL RAY FIERRO, Petitioner,
v.
JUDY SMITH, Respondent.

          DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          NANCY JOSEPH, UNITED STATES MAGISTRATE JUDGE.

         Daniel Ray Fierro, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Fierro alleges that his conviction for second-degree sexual assault of a child is unconstitutional. For the reasons stated below, the petition for writ of habeas corpus will be denied and the case dismissed.

         BACKGROUND

         Fierro was charged with two counts of second-degree sexual assault of a child under sixteen years of age and one count of misdemeanor bail jumping, based on allegations that Fierro had sexual intercourse with a fifteen-year-old girl on at least two occasions. (State v. Fierro, 2014AP1270 (Wis. Ct. App. Mar. 5, 2015), Answer, Docket # 12-5 at 2.) Pursuant to a plea agreement, Fierro pled guilty to one count of second-degree sexual assault of a child under sixteen years of age. (Id.) After sentencing, Fierro moved to withdraw his plea, asserting that his plea was unknowing and involuntary because he was unaware of the nature of the charge to which he pled. (Id.)

         Specifically, Fierro alleged that during the plea colloquy, the trial court did not explain the elements of the charge of sexual intercourse with a child under the age of sixteen. During the plea colloquy, the trial court noted that Fierro signed the plea questionnaire and asked whether he reviewed it with his attorney, to which Fierro responded affirmatively. (Transcript of Plea Hearing, Answer, Ex. 11, Docket # 12-11 at 4.) The trial court confirmed with Fierro that he was twenty-five years old and completed fourteen years of schooling. (Id.) The trial court then engaged in the following exchange with Fierro:

THE COURT: And it says that you understand each of these charges. Did you go through the Criminal Complaint with your attorney?
FIERRO: Yes.
THE COURT: I see that you've gone through or at least it appears that you've gone through both the jury instructions and the chart with the elements of the crime, crimes. So your attorney explained to you each of the elements of each of these crimes; is that right?
FIERRO: Yes.

(Id. at 4-5.) The trial court then inquired of Fierro's mental health and whether he was mentally able to proceed with his plea. (Id. at 5.) Fierro confirmed that he could proceed. (Id.) The trial court asked Fierro whether his attorney had advised him of his Constitutional rights, whether he understood those rights, and whether he understood that he was giving up those rights by entering a guilty plea, to which Fierro responded affirmatively. (Id. at 5- 6.) The trial court then stated:

THE COURT: I'm looking at Count 1 of the felony case file. They say that between June 1, 2012, and August 17, 2012, in Fitchburg in Dane County, that you had sexual intercourse with a child under the age of 16. Do you understand that charge?
FIERRO: Yes.
THE COURT: What is your plea to that ...

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