United States District Court, E.D. Wisconsin
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
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
State Habeas Proceedings
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.
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
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.
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.
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.
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.
Judge Duffin’s Recommendation
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.
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.
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 ...