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O'Brien v. Regional Chief

United States District Court, W.D. Wisconsin

September 30, 2019

MICHAEL O’BRIEN, Petitioner,
v.
REGIONAL CHIEF, Unit 615, Shawano, Wisconsin Department of Corrections, Probation and Parole, [1] Respondent.

          OPINION AND ORDER

          WILLIAM M. CONLEY, District Judge.

         Petitioner Michael O’Brien filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 in which he challenges his 2009 and 2010 convictions entered in four separate cases by the Circuit Court for Shawano County, Wisconsin. Specifically, O’Brien challenges his convictions for the following offenses:

• one count of obstructing an officer and two counts of bail jumping, entered on October 1, 2009, in No. 09CF179;
• one count of operating while under the influence (4th offense) and one count of bail jumping, entered on October 1, 2009, in No. 09CF325; and
• one count of operating while under the influence (5th offense), one count of obstructing an officer, one count of possession of cocaine, and two counts of bail jumping, entered on October 1, 2009 in No. 09CF371; and
• three counts of bail jumping, entered on February 17, 2010, in No. 09CF299. O’Brien is proceeding on his claim that his no contest pleas to the above charges are invalid because he entered them in reliance on faulty assistance from his attorney. More specifically, O’Brien contends that his attorney rendered constitutionally deficient assistance when he: (1) failed to adequately investigate and spent only a brief time with O’Brien before the plea hearings; (2) failed to inform O’Brien of all the consequences of taking the pleas; (3) failed to communicate with O’Brien about matters learned in discovery; and (4) failed to raise meritorious challenges to the traffic stops in the OWI cases, including a challenge to the blood draw. Id.

         As discussed below, the Wisconsin Court of Appeals rejected these claims, agreeing with the state circuit court that O’Brien had failed to satisfy either prong of the test set out in Strickland v. Washington, 466 U.S. 668 (1984), for analyzing claims of ineffective assistance of counsel. Having reviewed the Wisconsin Court of Appeals’ decision, along with the record of the state court proceedings and the parties’ submissions, this court finds that the state appellate court made reasonable findings of fact and applied Strickland in a reasonable manner when it rejected O’Brien’s claims. Accordingly, O’Brien’s application for habeas relief must be denied.

         FACTS[2]

         In 2009, petitioner was charged in the Circuit Court for Shawano County in four separate complaints with numerous felony and misdemeanor counts. Assistant State Public Defender Steven Weerts represented O’Brien on all of his cases. Weerts, a 20-year veteran of the Shawano SPD’s office, negotiated a plea agreement in which O’Brien agreed to enter no-contest pleas to certain offenses, while other counts were dismissed and “read in” for sentencing purposes.

         The court held a plea hearing on October 1, 2009, for cases 09CF179, 09CF325, and 09CF371. In each case, O’Brien completed a plea questionnaire and waiver of rights form, and the trial court conducted a colloquy with O’Brien to ensure that he was entering his pleas knowingly and voluntarily. O’Brien was sentenced on all three cases on December 10, 2009. In case 09CF299, O’Brien pleaded no contest and was sentenced on the same day, February 17, 2010.

         On or about April 2, 2013, O’Brien filed a motion for a writ of habeas corpus in all four cases, alleging that Weerts provided ineffective assistance of counsel.[3] At a hearing on the motion, O’Brien testified that his no-contest pleas were “uninformed” because Weerts had spent only a half hour with him from the time of his arrest to the plea hearing and had not communicated with O’Brien about matters learned in discovery. However, O’Brien acknowledged that he had wanted the judge to accept the plea.

         O’Brien also testified that, from his own research and review of the discovery materials after sentencing, he believed that a motion could have been brought to challenge the legality of the traffic stops that led to his OWI arrests. When asked whether he would have made a different decision if he had seen the discovery before he entered his plea, O’Brien responded:

Well, I don’t know. It’s something I would really like to – I would really like to discuss at length with somebody. I don’t know if I would make a different decision, but I would certainly like to explore my options.

(Mot. Hrg. Tr. (dkt. # 15-17) at 15.)

         Weerts was unable to remember certain specific details regarding his representation of O’Brien, which had occurred four years earlier. However, Weerts could recall meeting O’Brien at the jail and speaking to him on the phone. Weerts specifically disputed O’Brien’s testimony that he spent only a half hour with him on his cases, noting that given the No. of cases and charges, it would have taken longer than that just to review the charges with him. He further testified that it was his usual practice to discuss with his clients the facts and merits of each case, and in OWI cases, to explore whether there was a legal traffic stop. Weerts testified that in O’Brien’s case in particular, he did not see a basis to bring such a challenge. Weerts further testified that it is his usual practice to convey all plea offers to his clients, to advise the client regarding the pros and cons of entering a plea, to review with the client what he or she would be giving up by entering a plea, and also that he does not pressure his clients to make a decision one way or the other. Finally, he testified that it was his impression that O’Brien was of above-average intelligence and that he did not have trouble understanding things.

         The court denied O’Brien’s motion for postconviction relief, finding that O’Brien had shown neither deficient performance nor prejudice under Strickland. (Hrg. Tr. (dkt. #15-18) at 29.) Noting that O’Brien and Weerts had different recollections concerning the amount of time the two spent discussing the cases, the court found Weerts’s testimony more credible. Among other things, the court observed that in O’Brien’s first three cases, two months elapsed between the plea and sentencing during which O’Brien did not express second thoughts about his plea or Weerts’s performance, nor did he raise any such concerns at the sentencing hearing. Moreover, in spite of his current complaints that ...


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