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Young v. Boughton

United States District Court, W.D. Wisconsin

October 15, 2019

MARLON T. YOUNG, Petitioner,
GARY BOUGHTON, Warden, Wisconsin Secure Program Facility, Respondent.



         Marlon T. Young seeks a writ of habeas corpus under 28 U.S.C. § 2254. Presently confined at the Wisconsin Secure Program Facility in Boscobel, Wisconsin, Young challenges his March 6, 2015, conviction in the Circuit Court for Kenosha County, Wisconsin, on one count of repeated sexual assault of the same child. On January 2, 2019, the magistrate judge screened the petition under Rule 4 of the Rules Governing Section 2254 Cases and determined that petitioner had failed to provide enough facts to allow the court to find that he was in custody in violation of the laws or Constitution of the United States. (Order (dkt. #4) 2.) Accordingly, the magistrate judge directed petitioner to submit an amended petition with facts supporting each claim.

         In response, petitioner submitted an amended petition, attached to which is the decision of the Wisconsin Court of Appeals affirming his conviction, transcripts of certain proceedings held in the trial court, and some medical records. (Am. Pet. (dkt. #9).) Petitioner asserts the following grounds for relief: (1) the trial court erred in denying petitioner's motion to withdraw his no contest plea; (2) the trial court violated petitioner's Sixth Amendment right to represent himself at trial; and (3) Young's post-conviction counsel was ineffective for “failing to present expert testimony in Young's favor.” Petitioner does not set out any facts in support of his claims, but directs the court to the attachments. The Wisconsin Court of Appeals' decision shows that petitioner raised the first two grounds on direct appeal from his conviction. State v. Young, 2017 WI.App. 66, 378 Wis.2d 219, 904 N.W.2d 143 (unpublished opinion).

         Petitioner's failure to provide any facts in support of his claims is a violation of both the magistrate judge's order and Rule 2(c)(2) of the Rules Governing Section 2254 Cases, and the petition could be dismissed on that basis alone. Nevertheless, the court will give petitioner the benefit of the doubt and assume that his first two claims are the same as raised in the state courts. Even so, those claims will be dismissed because it is plain from the amended petition and its attachments that they have no merit. Young's third claim will be summarily dismissed because it fails to state a claim.


         The Wisconsin Court of Appeals provided the following account of the trial court proceedings in petitioner's case:

In 2010, Young was charged with sexually assaulting a four-year-old child who tested positive for herpes and disclosed multiple incidents of sexual contact committed by the defendant. Young initially pled not guilty and trial was continuously delayed, largely as a result of his numerous conflicts with and requests for new attorneys. By the end of November 2012, Young had been represented by six attorneys, all but one of whom withdrew at Young's request or for reasons otherwise attributable to Young's conduct. At a hearing on November 28, 2012, the circuit court permitted attorney number six to withdraw so that another attorney could be appointed, but warned Young that this next attorney would be his last:
It is getting to the point where you can't just keep on trading for [the] next attorney. If the next attorney doesn't work out and you wish to fire him, which is your right-I just need to be clear with you. You do not have to go forward with an attorney. You can go forward without one also. But I do need to give you the warning that ... should you and that attorney move to withdraw and this court finds that it's for reasons not of the attorney's making but of-of your making, that this court will then find that you have forfeited the right to counsel and that you will then proceed pro se. So, I just need to make that clear with you, Mr. Young.
Attorney Robert Peterson was appointed as Young's seventh attorney and represented Young for almost nine months when, one month before trial, he moved to withdraw. At a hearing on August 23, 2013, the circuit court permitted Peterson to withdraw and determined that by his conduct, Young had forfeited his right to counsel and would serve as his own attorney:
The court warned you in November of 2012 that Mr. Peterson was your final attorney. Every time we get close to a trial you make allegations that your attorney is not communicating with you or that they are in [some way] committing professional misconduct or that in some way that they are against you. You are entitled to representation, but you're not entitled to serial representation. You can't just continue to go through attorney after attorney after attorney looking for the right one.
One week later, the parties were back in court on the issue of representation. The State had filed a motion requesting that the victim be permitted to testify outside of Young's presence and it became clear that disposition of the motion would be difficult with Young representing himself. The circuit court asked Young if he wanted another appointed attorney and indicated it would be willing to appoint standby counsel. Young asked for further explanation and the circuit court explained that standby counsel was “not co-counsel, ” but would be “simply standing by to answer how to do things.” Young asked if he could just get “another attorney” and the court expressed reluctance to again appoint advocate counsel, citing the sheer number of prior attorneys and Young's purportedly threatening behavior toward Peterson. In protest, Young attempted to explain his behavior toward Peterson and the circuit court agreed to appoint “actual counsel” for Young. Attorney Douglas Henderson was appointed as Young's eighth attorney but soon informed the court that he had a conflict of interest. The circuit court appointed Attorney Christopher Glinski as Young's ninth attorney.
Trial began on May 12, 2014, and Young appeared with Glinski. Before jury selection, Young informed the court that he wanted to enter into a plea agreement. The court began a plea colloquy but when asked if anyone had threatened or coerced him to enter his plea, Young stated that he “was threatened and promised.” The court asked for specifics and Young replied, “I plead the Fifth.” The court determined it could not accept the plea and the proceedings continued, with the circuit court addressing motions in limine.
Just before the prospective jurors were brought in, Glinski made a statement suggesting that Young now wanted to represent himself. The circuit court asked for clarification, observing that Young had never before asked to represent himself. The following discussion ensued:
THE COURT: [to trial counsel] Is he-are you telling me at this point Mr. Young is asserting his request to represent himself?
[TRIAL COUNSEL]: He's requesting-well, maybe the court should have a colloquy with him in terms of what exactly he's requesting and the court should outline in terms of, you know, what-what his request would entail and, you know, what's going ...

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