United States District Court, W.D. Wisconsin
JOHN F. WRIGHT, JR., Petitioner,
WISCONSIN DEPT. OF CORRECTIONS, DIVISION OF COMMUNITY CORRECTIONS, Respondent
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge.
Wright, Jr. has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, in which he claims that
his 2016 conviction in the Circuit Court for Dane County for
battery and domestic abuse disorderly conduct was obtained in
violation of his constitutional rights. (Dkt. #1.) On
September 20, 2018, Magistrate Judge Stephen Crocker reviewed
the petition and construed it as raising the following
claims: (1) the prosecutors who handled petitioner’s
case presented perjured testimony and tainted evidence at
trial; (2) petitioner’s trial counsel was ineffective
for allowing the perjury to occur and for not calling
petitioner’s son as a witness; (3) petitioner’s
appellate counsel was ineffective for advising petitioner
that she saw no meritorious grounds for appeal; and (4) the
trial judge, an appellate court judge and all of the justices
of the Wisconsin Supreme Court engaged in judicial misconduct
when they denied various motions brought by petitioner. (Dkt.
# 8.) The magistrate judge concluded, after reviewing the
petition and publicly-available documents, that petitioner
had more than likely procedurally defaulted any federal
claims -- to the extent they were viable -- by failing to
petition the Wisconsin Supreme Court for review after the
Wisconsin Court of Appeals summarily affirmed his conviction.
Accordingly, the magistrate judge directed petitioner to show
cause why the court should not dismiss his petition on
grounds of procedural default; more specifically, petitioner
was ordered to show one of the following: (1) he did not
include all of his federal claims in his state court direct
appeal and a state court procedure is available by which he
still may be able to do so; (2) some objective factor
external to the defense prevented him from filing a petition
for review with the Wisconsin Supreme Court; or (3) no
reasonable juror would have convicted him in light of new
evidence that was not presented at trial.
has now responded to the magistrate judge's order. (Dkt.
#9.) Although he has submitted a slew of documents to support
his claim that his conviction was obtained and upheld as a
result of a far-ranging conspiracy involving the police, the
prosecutor, his trial and appellate attorneys, and various
state court judges, none of these documents provides a reason
for this court to overlook petitioner’s procedural
default and hear his petition on the merits. Accordingly, the
court must dismiss the petition.
seeking a writ of habeas corpus in federal court, a state
prisoner must first give the state courts a full and fair
opportunity to resolve any federal constitutional claims.
O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); 28 U.S.C. § 2254(b)(1)(A). This legal principle,
known as comity, recognizes that state and federal courts are
equally bound to guard against constitutional violations and
that federal courts will not overturn a state court
conviction unless the state courts have had an opportunity to
correct the violation in the first instance. Id.;
Rose v. Lundy, 455 U.S. 509, 515 (1982). To ensure
the state courts have had this opportunity, a state prisoner
must exhaust his claims by invoking “one complete round
of the State’s established appellate review
process.” Boerckel, 526 U.S. at 846. This means that he
must present his claims to the highest state court for a
ruling on the merits. Lieberman v. Thomas, 505 F.3d
665, 669 (7th Cir. 2007). In Wisconsin, this means that a
petitioner must pursue his claims all the way to the
Wisconsin Supreme Court.
did not do this, at least not in the way he was supposed to.
As he acknowledges, he did not file a petition for review in
the Wisconsin Supreme Court, which is the established
procedure for seeking review of an adverse decision of the
Wisconsin Court of Appeals. Wis. Stat. § 809.62.
Instead, while his direct appeal was pending before the state
court of appeals, petitioner filed a “Petition for An
Original Action” in the Wisconsin Supreme Court. Such
actions, although authorized by Article VII, Section 3(2) of
the Wisconsin Constitution, are not part of the state’s
“established appellate review process” for
reviewing criminal convictions, but rather are reserved for
“exceptional cases in which a judgment by the court
significantly affects the community at large.” Wis.
Prof l Police Ass’n, Inc. v. Lightbourn, 2001 WI
59, ¶ 4, 243 Wis.2d 512, 627 N.W.2d 807. Under Boerckel,
therefore, petitioner’s original action does not
“count” towards satisfying the exhaustion
requirement. See Baldwin v. Reese, 541 U.S. 27, 29
(2004) (petitioner must fairly present his claims “in
each appropriate state court” as established by state
magistrate judge explained in his order, a petitioner’s
failure to fully exhaust his state court remedies in
accordance with state law -- as petitioner did here --
constitutes a “procedural default” that bars the
federal court from hearing the claims unless the petitioner
can meet certain criteria. (9/21/18 Op. & Order (dkt. #8)
3-4.) As noted previously, the magistrate judge spelled out
expressly what petitioner had to show in order to satisfy
these criteria. Having reviewed petitioner’s response
to the magistrate judge’s order, the court finds that
petitioner has wholly failed to satisfy his burden.
Petitioner does not explain why he failed to file a petition
for review with the Wisconsin Supreme Court, other than to
refer to the fact that he was proceeding pro se. However, a
prisoner’s pro se status does not constitute
“cause” for a default. See Harris v.
McAdory, 334 F.3d 665, 668 (7th Cir. 2003)
(petitioner’s pro se status does not constitute
adequate grounds for cause). Similarly, petitioner’s
lack of education or legal knowledge are not “external
impediments” that would excuse a procedural default.
See, e.g., Dellinger v. Bowen, 301 F.3d 758, 763
(7th Cir. 2002) (petitioner’s youth and lack of
education did not constitute cause); Henderson v.
Cohn, 919 F.2d 1270, 1272-73 (7th Cir. 1990)
(petitioner’s illiteracy and limited education
insufficient to establish cause). Petitioner has not
attempted to show that he is actually innocent, see
Schlup v. Delo, 513 U.S. 298, 315 (1995), nor does he
assert that he has additional federal claims that he could
still raise in the state courts. Instead, he insists that
“numerous state officials” who were involved with
his case committed crimes in order to secure his conviction,
and that the “public interest” demands that this
court investigate those crimes and review his conviction.
Convinced though petitioner may be, the documents he has
attached to his response do not come close to establishing
criminal behavior, and they certainly fail to provide this
court with a reason to overlook his default and review his
conviction. As a result, this court must dismiss the petition
on grounds of procedural default.
the court declines to issue a certificate of appealability as
to the claims advanced in the habeas corpus petition. See 28
U.S.C. § 2253(c)(2); Rule 11 of the Rules Governing
Section 2254 Cases. For the reasons stated in this order, the
court finds that reasonable jurists would not debate whether
this court was correct in its procedural ruling. Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (“When the
district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying
constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.”)
ORDERED that the petition of John Wright, Jr. for a writ of
habeas corpus is DENIED. No. ...