United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON, DISTRICT JUDGE
Winkler, appearing pro se, has filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Winkler pleaded
guilty to one count of child abuse causing great bodily harm
in Oneida County case No. 2015CF172 and was sentenced to 10
years in prison. Winkler appealed, see State v. Winkler, No.
2015AP726-CRNM (Wis. Ct. App. filed Apr. 19, 2017), but his
appellate counsel, attorney Roberta Heckes, sought to
withdraw from the case and filed a no-merit report in
accordance with Anders v. California, 386 U.S. 738
says that neither Heckes nor the court of appeals sent him a
copy of the no-merit report, causing him to miss the deadline
to file his response. Noting that Winkler had missed his
deadline despite several extensions of time, the court of
appeals concluded that there was no arguable merit to any
issue that could be raised on appeal, granted Heckes's
motion to withdraw, and summarily affirmed the conviction.
See No. 2015AP726-CRNM (Wis. Ct. App. Feb. 27, 2019). A short
time later, Winkler filed a belated response to Heckes's
no-merit report with the court of appeals. The court
construed the filing as a motion for reconsideration of its
earlier order and denied it without analysis. See No.
2015AP726-CRNM (Wis. Ct. App. Mar. 28, 2019). Winkler sought
review by the Wisconsin Supreme Court, but his petition was
denied on July 10, 2019.
filed this habeas petition a few weeks later, contending that
Heckes provided constitutionally ineffective assistance by
failing to send him a copy of her no-merit report. (The
petition does not discuss or include a copy of Heckes's
no-merit report or Winkler's response to it, so the
underlying substance of the claims asserted in those filings
isn't clear.) The habeas petition is before me for
preliminary review under Rule 4 of the Rules Governing
Section 2254 Cases. Under Rule 4, I must dismiss the petition
“if it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief.” I conclude that Winkler's petition must be
dismissed because he has failed to exhaust his remedies about
his asserted problem of ineffective assistance of counsel in
state court, which is a prerequisite to challenging the
effectiveness of appellate counsel. See State v.
Knight, 168 Wis.2d 509, 484 N.W.2d 540, 545 (1992).
Winkler may refile his habeas petition if and when he
exhausts his claim in state court, so long as he does so
within the one-year statute of limitations period imposed by
28 U.S.C. § 2244(d).
only claim Winkler asserts in his petition is ineffective
assistance of appellate counsel. Under the Sixth Amendment to
the United States Constitution, criminal defendants are
entitled to effective assistance of counsel on direct appeal.
Gallo-Vasquez v. United States, 402 F.3d 793, 800
(7th Cir. 2005). But before I can consider the merits of any
ineffective-assistance claim, Winkler must exhaust it by
fully and fairly presenting it to the state courts so that
they have a meaningful opportunity to correct any mistakes.
Bolton v. Akpore, 730 F.3d 685, 694 (7th Cir. 2013);
see also 28 U.S.C. § 2254(b)(1). Under Wisconsin law,
the proper way to raise a claim of ineffective assistance of
appellate counsel is by filing a motion under Wisconsin
Statute § 974.06, the state-court equivalent of a
petition for habeas corpus, in the court that heard the
appeal. Those motions are more commonly known as
“Knight petitions, ” after State v.
Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992).
does not mention having filed a Knight petition, and a search
of the state's electronic case management system
indicates that he has not filed one. Accordingly, I will deny
Winkler's habeas petition as unexhausted, without
prejudice to him refiling it should his Knight petition
proceedings prove unsuccessful.
are two additional considerations that Winkler should bear in
mind should he choose to pursue his ineffective-assistance
claim further. First, Winkler should promptly file his Knight
petition in the Wisconsin Court of Appeals or risk losing his
ability to seek relief under § 2254 in federal court
down the line. There is a one-year statute of limitations for
petitions brought under § 2254, which runs from certain
specified dates. See 28 U.S.C. § 2244(d). Here, the
relevant date is most likely the date Winkler's judgment
of conviction became final. According to the state's
electronic case management system, that was July 10, 2019,
when the Wisconsin Supreme Court denied review of his direct
appeal. Winkler's one-year clock for filing a federal
habeas petition on that conviction began running 90 days
later, on October 8, 2019. See Anderson v. Litscher,
281 F.3d 672, 674-75 (7th Cir. 2002) (one-year statute of
limitations does not begin to run under § 2244(d)(1)(A)
until expiration of 90-day period in which prisoner could
have filed petition for writ of certiorari with United State
roughly ten months remaining, Winkler does not risk running
afoul of the statute of limitations so long as he diligently
pursues his Knight petition. As soon as Winkler properly
files the Knight petition with the Wisconsin Court of
Appeals, his habeas clock will stop, and it will remain
stopped during the entire time that the motion is pending.
See 28 U.S.C. § 2244(d)(2). An application for
postconviction relief is “properly filed” under
§ 2244(d)(2) once it is accepted by the state courts.
Artuz v. Bennett, 531 U.S. 4, 8 (2000). The clock
won't start again until Winkler receives a final decision
from the Wisconsin Supreme Court on any appeal of his Knight
petition, so long as Winkler doesn't miss any deadlines
for filing a petition for review. Fernandez v.
Sternes, 227 F.3d 977, 980 (7th Cir. 2000). The only
time that will count against Winkler's habeas clock is
the time leading up to his filing of the Knight petition and
the time between the conclusion of the state-court
proceedings and the filing of a new federal habeas petition.
So Winkler should promptly file the Knight petition to avoid
second consideration that Winkler should bear in mind is that
prevailing on an ineffective assistance of counsel claim
requires demonstrating both constitutionally deficient
performance by counsel and actual prejudice as a result of
the alleged deficiency. See Williams v. Taylor, 529
U.S. 362, 390-91 (2000) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). To establish
ineffectiveness, a defendant must show that counsel's
representation “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688.
To establish prejudice, he must show that there is “a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. Winkler did
not include with his habeas petition Heckes's no-merit
report or his belated response to it, nor did he discuss how
Heckes's alleged failure to send him a copy of her report
made a difference to the outcome of the proceedings. In any
Knight petition or § 2254 petition that Winkler files in
the future, he will need to explain how Heckes's error
ORDERED that the federal habeas corpus petition filed by
Michael Winkler pursuant to 28 U.S.C. § 2254 is DENIED
and this case is DISMISSED without prejudice. The clerk of
court is directed to close this case.