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Martinez v. Richardson

United States District Court, E.D. Wisconsin

September 30, 2019

VINCENT MARTINEZ, Petitioner,
v.
WARDEN REED RICHARDSON, [1] Respondent.

         ORDER ADOPTING JUDGE DUFFIN’S REPORT AND RECOMMENDATION (DKT. NO. 20), GRANTING RESPONDENT’S MOTION TO DISMISS COUNTS THREE AND FOUR AND DENYING REPONDENT’S MOTION TO DISMISS COUNTS ONE AND TWO (DKT. NO. 14), GRANTING PETITIONER’S MOTION TO AMEND/CORRECT MOTION FOR APPOINTMENT OF COUNSEL (DKT. NO. 25), DENYING WITHOUT PREJUDICE PETITIONER’S MOTION TO APPOINT COUNSEL (DKT. NO. 23) AND SETTING BRIEFING SCHEDULE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         The petitioner, an inmate at Stanley Correctional Institution, filed a petition for writ of habeas corpus challenging his October 22, 2013, revocation of supervision. Dkt. No. 1. The respondent moved to dismiss the petition, and Magistrate Judge William E. Duffin issued a report recommending that this court deny the motion as to Grounds One and Two but grant it as to Grounds Three and Four. Dkt. No. 20. While the petitioner did not object to Judge Duffin’s recommendation, dkt. no. 22, the respondent objected to the recommendation that this court deny the motion as to Grounds One and Two, dkt. no. 21. The petitioner since has filed a motion to appoint counsel, dkt. no. 23, and a motion to amend/correct his motion to appoint counsel, dkt. no. 25.

         I. Background

         In February 2003, the petitioner pled guilty to a charge of aggravated battery-intended substantial injury in Washington County Circuit Court. Dkt. No. 1 at 2. The judge sentenced the petitioner to three and a half years in prison, followed by ten years of extended supervision. Id. The petitioner says that he began serving the extended supervision portion of his sentence on January 26, 2010. Dkt. No. 5 at 1.

         A. Revocation

         In August of 2013, the Wisconsin Department of Corrections initiated proceedings to revoke the petitioner’s supervision, alleging the following violations: (1) pursuing a relationship with K.V. without prior agent approval; (2) failing to provide true and correction information to his agent; (3) strangling K.V.; (4) beating K.V. to the point she received eleven stitches to her face; (5) consuming alcohol; (6) punching C.J.; (7) possessing a knife; and (8) calling K.V. thirty times. Dkt. No. 5-1 at 1. At the October 8, 2013 revocation hearing, the petitioner stipulated to the fifth violation, consuming alcohol. Dkt. no. 5-1 at 54. In his written statement, the petitioner denied all other allegations. Dkt. No. 18-1 at 6. He claimed he did not remember what happened, claimed that he was ambushed and said that he did not have a knife. Id. He said that he was just friends with K.V. (although admitted that he wanted to date her). Id. He also denied hitting, punching or choking K.V. and said that K.V. told him she had fallen down the stairs. Id. at 7. The administrative law judge admitted this written statement into evidence as an exhibit at the revocation hearing. Dkt. No. 5-1 at 54-55.

         On October 22, 2013, the administrative law judge revoked the petitioner’s extended supervision. Id. at 1-4. The ALJ found that the petitioner had physically assaulted K.V., punched another person in the face and possessed a knife. Id. at 3. She found that he lied to his supervising agent about pursuing a relationship with K.V. and called and texted her repeatedly after she told him to stop. Id. Noting that this was the same kind of conduct that had resulted in his conviction, the ALJ concluded that confinement was necessary to protect the public. Id. She determined that the appropriate period of reincarceration was five years and two months. Id. at 4.

         B. State Habeas Proceedings

         On August 6, 2014, the petitioner filed a habeas petition in Washington County Circuit Court. Id. at 25. The petitioner alleged that the attorney who had represented him at the revocation hearing provided ineffective assistance of counsel, id. at 26, as well as due process violations by the ALJ, id. at 27. Specifically, the petitioner alleged that his lawyer failed to object (1) to hearsay testimony of a police officer and the petitioner’s supervising agent; (2) on due process grounds that the petitioner was not able to confront and cross-examine adverse witness; and (3) to the ALJ’s failure to determine good cause for the victims’ failure to appear and be subject to cross-examination. Id. at 38.

         The Washington County Circuit Court dismissed the petition after concluding that the petitioner had other adequate remedies at law, either through petitioning for certiorari or by filing a motion under State ex rel. Booker v. Schwarz, 270 Wis.2d 745 (Ct. App. 2004). Id. at 26-30. The court added that even if its analysis was incorrect, and the petitioner didn’t have any other adequate and available remedies for the issues he’d raised, the court still would not have held an evidentiary hearing because the petition lacked merit. Id. at 28. The court found that the two ineffective assistance of counsel claims failed under Strickland v. Washington, 466 U.S. 668 (1984), because counsel’s performance was not deficient. Id. at 28-30. The circuit court pointed out that counsel objected to the medical records as hearsay (just not to the statements made by the victim). Id. at Counsel also challenged the reliability of the hearsay testimony in her closing statement by pointing out that the officer “was reading from a report written by somebody else” and asking that the officer be found not reliable. Id. at 29. The circuit court concluded that it would have been “fruitless” for the attorney to object given the ALJ’s statement that she would consider whether the double hearsay had sufficient indicia of reliability. Id. And while the court acknowledged that counsel had not raised the issue of good cause to challenge the ALJ’s determination to deny the petitioner’s right to confrontation, she had asked in her closing argument why K.V. would ignore the subpoena and fail to show for the hearing. Id.

         The Wisconsin Court of Appeals affirmed, also concluding that counsel was effective. Id. at 32-49. The appellate court limited the appeal to the ineffective assistance of counsel claims, finding that that issue was cognizable only through certiorari and that the petitioner had made no effort to show “that there is no other adequate remedy available in the law.” Id. at 33, n. 1. The Wisconsin Court of Appeals determined that the petitioner did not and could not show prejudice. Id. at 41. The court noted that he had stipulated to one violation of the conditions of extended supervision, and that that stipulation alone provided a sufficient ground for revocation. Id. The court found that even if counsel had done the things the petitioner claimed she hadn’t done at the hearing, he had not demonstrated a probability that the outcome of his hearing would have been any different. Id. at 49. The Wisconsin Supreme Court denied the petitioner’s petition for review on May 15, 2017. Dkt. No. 50.

         C. §2254

         The petitioner filed this federal habeas petition on May 7, 2018. Dkt. No. 1. He raised four claims. The first two alleged ineffective assistance of counsel: he says that counsel was ineffective because (1) she did not object to hearsay testimony and (2) that she did not object to the ALJ’s failure to make a finding of good cause when the witnesses failed to appear at the hearing. Id. at 6-7. The third claim is based on the ALJ’s alleged failure to determine that the statements of the absent witnesses were reliable. Id. at 9. Finally, the petitioner argues that the supervising agent failed to provide him with exculpatory evidence. Id. at 9.

         The respondent filed a motion to dismiss under Federal Rules of Civil Procedure 7(b) and 12(b)(6), Civil Local Rule 7 and 28 U.S.C. §2254(b). Dkt. No. 14. In the eight-page brief filed in support of the motion to dismiss, the respondent argued that all four claims were procedurally barred, that the ineffective assistance claim was not cognizable because the petitioner had no right to counsel in the revocation proceeding, and that the exculpatory evidence claim remained unexhausted. Dkt. No. 15 at 1.

         In opposition to the motion to dismiss, the petitioner claimed that his agent told him an attorney would be appointed to represent him at the final revocation hearing and she provided a copy of the procedural rights to which he was entitled at that hearing. Dkt. No. 18 at 5. Citing Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973), the petitioner argued that the State of Wisconsin determines whether he has a right to counsel in a revocation proceeding and that right would include the right to effective assistance of counsel. Id. at 3-4. The petitioner argued that any default occurred because the state was not clear on what issues a petitioner was required to raise in a petition for certiorari. Id. at 12. As to the respondent’s claim that the petitioner hadn’t exhausted his exculpatory evidence claim, the petitioner asked this court to hold these proceedings in abeyance while he awaits a decision from the state court on his claim that newly-discovered evidence could demonstrate his innocence. Id. at 16-18.

         II. Judge Duffin’s Recommendation

         Judge Duffin found that the petitioner had a colorable claim that he had not violated his conditions of release because of his denial of the charges to his supervising agent. Dkt. No. 20 at 4 (citing United States v. Jones, 861 F.3d 687, 690 (7th Cir. 2017) (quoting United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir. 2015)); see also, e.g., United States v. Turok, 699 F.App'x 569, 570 (7th Cir. 2017) (noting that due process may require the appointment of counsel if the defendant disputes the allegations, disputes the appropriateness of revocation, or asserts “substantial and complex grounds in mitigation”); United States v. Brown, 690 F.App'x 421, 423 (7th Cir. 2017) (same); United States v. Jiles, 672 F.App'x 598, 599 (7th Cir. 2017) (same)). Consequently, Judge Duffin concluded that the petitioner had a right to effective assistance of counsel at the revocation hearing. Id. at 4-5. He also questioned the respondent’s argument that a defendant’s right to counsel hinges on his denial of the allegations in their entirety. Id. at 5. Judge Duffin recommended that this court decline to dismiss Grounds One and Two, the ineffective assistance claims. Id. at 6.

         Judge Duffin also addressed Grounds Three and Four. In Ground Three, the petitioner had argued that the ALJ did not explicitly find that the absent victim witnesses’ hearsay statements were reliable. Dkt. No. 1 at 8. Judge Duffin found the petitioner had procedurally defaulted this claim. Dkt. No. 20 at 7. He concluded that a claim that an ALJ committed legal error in a revocation proceeding may be brought on certiorari review. Dkt. No. 20 at 6 (citing dkt. no. 5-1 at 33, n. 1). Because that claim was not cognizable on habeas review, Judge Duffin said, the Wisconsin Court of Appeals addressed only the ineffective assistance of counsel claims. Id.

         Judge Duffin concluded that because the Wisconsin Court of Appeals did not consider the alleged errors as a matter of state law, the petitioner had procedurally defaulted his claim. Dkt. No. 20 at 7. The petitioner did not allege cause and prejudice or otherwise demonstrate that a failure to consider the defaulted claim would result in a miscarriage of justice. Id. at 8. For that reason, Judge Duffin ...


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