Pugh v. Richardson

Filing 49

ORDER signed by Judge William C Griesbach on 9/7/2021 granting 24 Motion to Dismiss claims 1 through 5 and 7 through 14 ;granting 43 Motion to clarify the brief in opposition; denying 44 Motion for Reconsideration ; (cc: all counsel and mailed to pro se party)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SEAN T. PUGH,
Petitioner,
v.

Case No. 16-C-1456

REED RICHARDSON,
Respondent.
DECISION AND ORDER GRANTING RESPONDENT’S MOTION
FOR PARTIAL DISMISSAL

On October 31, 2016, Petitioner Sean T. Pugh filed this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his 2012 convictions for multiple drug crimes. His
petition asserts fourteen claims for relief involving three state court decisions. At Pugh’s request,
the petition was stayed for a substantial period of time to permit him to complete state proceedings
in the case. The case is now before the Court on Respondent’s motion to dismiss thirteen of the
claims asserted in Pugh’s petition. For the reasons that follow, the motion will be granted.
BACKGROUND
In December 2012, a jury convicted Pugh of possession and possession with intent to
distribute cocaine and THC as a repeater, as well as maintaining a drug trafficking place. See Pugh
Case Hist., Resp.’s Br., Ex. 1 at 1, Dkt. No. 25-1. He was sentenced to 27 years of initial
confinement with 24 years of extended supervision. He filed a direct appeal, contesting the circuit
court’s decisions to admit other acts evidence and to allow the State to amend the Information.
The Wisconsin Court of Appeals affirmed Pugh’s conviction. State v. Pugh, No. 2013AP1522-

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CR (Wis. Ct. App. Oct. 21, 2014). Pugh then filed a motion for relief under Wis. Stat. § 974.06,
asserting that his post-conviction and appellate counsel were ineffective for failing to assert that
(1) his trial counsel provided ineffective assistance by failing to interview and/or impeach certain
witnesses and (2) the State had failed to disclose information favorable to his defense in violation
of his due process rights. In addition to his § 974.06 motion, Pugh filed a Knight petition for a
writ of habeas corpus with the Wisconsin Court of Appeals claiming that his appellate counsel was
ineffective for failing to raise the same issues. See State v. Knight, 168 Wis. 2d 509, 484 N.W.2d
540 (1992).
The court of appeals denied the Knight petition ex parte, finding that “Pugh’s claims of
ineffective assistance of counsel are not clearly stronger than the claims raised on direct appeal,”
and that, given the overwhelming evidence of guilt produced at trial, the witness issues could not
“have reasonably affected the outcome of the trial.” State v. Pugh, No. 2016AP943-W (Wis. Ct.
App. Sept. 22, 2016), Dkt. No. 25-3 at 4 (internal quotation marks omitted). The circuit court
thereafter denied Pugh’s § 976.04 motion as moot. Pugh subsequently appealed the circuit court’s
denial of his § 976.04 postconviction motion. The Wisconsin Court of Appeals affirmed the circuit
court’s decision and held that Pugh’s “current claims for relief from the judgment of conviction
are procedurally barred by the prior proceedings.”

State v. Pugh, Nos. 2016AP2505 &

2017AP1619 (Wis. Ct. App. Aug. 6, 2019), Dkt. No. 25-2 at 2. The appeals court specifically
addressed the circuit court’s denial of Pugh’s motion for post-conviction relief, explaining
those issues were procedurally barred by Pugh’s failure to include them with the
other issues raised in his direct appeal. In addition, Pugh’s attempt in his
postconviction motion to recast the issues as claims based upon newly discovered
evidence fails because—absent any showing that the information would have
affected the trial—the information did not satisfy the materiality criteria for newly
discovered evidence.

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Id. at 5–6. Addressing Pugh’s assertion that the real controversy had never been tried, the appeals
court reiterated that the issues he repeatedly raised “would not have affected the outcome of the
trial” and that “the real controversy was tried and . . . no miscarriage of justice occurred.” Id. at
6–7. Pugh subsequently filed this petition for a writ of habeas corpus.
PRELIMINARY MATTERS
Before turning to the merits of Respondent’s motion to dismiss, the Court will first address
Pugh’s motions. Pugh filed a motion for reconsideration of the Court’s November 18, 2020, order
granting his counsel’s motion to withdraw. After counsel filed a brief in opposition to the motion
to dismiss, Pugh filed a pro se motion requesting to withdraw the brief in opposition because he
believed his attorney erroneously conceded procedural default and made other pleading errors and
inaccuracies. Pugh’s counsel subsequently filed a motion to withdraw. The Court granted the
motion to withdraw with qualification. The Court terminated Attorney Jeffrey Jensen as counsel
but indicated that his response brief will remain a part of the record and may be considered by the
Court as a friend of the court brief and directed Pugh to file a brief in opposition by December 18,
2020. Dkt. No. 41. Pugh now requests that the Court reconsider its order granting his attorney’s
motion to withdraw as counsel or condition his request to withdraw on the return of funds advanced
to him.
Pugh’s motion for reconsideration will be denied. Pugh made it very clear that he did not
approve of counsel’s response to Respondent’s motion to dismiss and sought to submit his own,
separate response brief. Counsel cannot work effectively when a client essentially wishes to
represent himself. It was therefore appropriate to allow counsel to withdraw. The Court will not
compel Attorney Jensen to refund Pugh the monies already paid for his services. It is obvious that

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Attorney Jensen performed substantial services in Pugh’s case. Whether any refund might be due
is a contractual question beyond the scope of the issues in this case.
Pugh also filed a motion to clarify his brief in opposition to Respondent’s motion to
dismiss. The motion will be granted. The requested clarifications have been noted by the Court.
The Court will now turn to Respondent’s motion to dismiss.
ANALYSIS
Respondent asserts that the following claims are either not cognizable under § 2254 or were
procedurally defaulted because the Wisconsin Court of Appeals denied Pugh’s request for relief
based on an independent and adequate state law basis: the trial counsel provided ineffective
assistance by failing to impeach a witness (Claim 1), post-conviction counsel provided ineffective
assistance when he failed to master the trial record (Claim 2), Pugh’s right to due process was
violated when the State failed to correct false testimony (Claim 7), Pugh’s right to due process was
violated when the State failed to disclose material evidence (Claim 8), the circuit court arbitrarily
denied his Wis. Stat. § 974.06 motion (Claim 9), the Wisconsin Court of Appeals’ ex parte
dismissal of Pugh’s state habeas, or Knight, petition deprived Pugh of effective assistance of
counsel (Claim 10), the Wisconsin Court of Appeals lacked jurisdiction to decide the merits of
Pugh’s state habeas petition while the Brown County Circuit Court exercised jurisdiction over
Pugh’s § 974.06 motion (Claim 11), the Wisconsin Court of Appeals refused to apply the correct
law (Claim 12), the Wisconsin Court of Appeals refused to apply Brady v. Maryland (Claim 13),
and the Wisconsin Court of Appeals refused to apply Strickland v. Washington (Claim 14). As
Respondent notes, it is questionable whether many of these so-called claims are even cognizable
under § 2254. Failing to master the trial record, for example, does not amount to a claim
cognizable under § 2254 unless such failure resulted in the denial of a constitutional right.

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Likewise, erroneous decisions by a state’s appellate courts are reviewable by federal courts under
§ 2254, but the decisions themselves are not constitutional violations.
Having reviewed the filings by the parties and the decisions of the Wisconsin Court of
Appeals, the Court now concludes that the following claims have been exhausted and are entitled
to review under § 2254:
ineffective assistance of appellate/postconviction counsel due to counsel’s failure to
raise the issues of: (1) whether the State violated his right to due process of law
when it failed to disclose numerous concessions and benefits given to its key witness
and concessions given to another lay witness, and (2) that his right to effective
assistance of counsel was violated when trial counsel failed to impeach one of the
lay witness's testimony and failed to object to, and failed to investigate, another
witness's testimony.
These claims were rejected by the state court of appeals on their merits. The appellate
court addressed each and concluded that “there is no reasonable probability that counsel would
have prevailed on appeal but for counsel’s failure to raise the current due process and ineffective
assistance of counsel claims.” Dkt. No. 25-3 at 5. The remaining claims Pugh purports to raise in
his petition for habeas relief are either not cognizable under § 2254 or were procedurally defaulted.
Pugh’s claim that the trial court erred in admitting the other act evidence from his 2001 conviction
was never raised as a constitutional claim and thus is procedurally defaulted. Respondent’s motion
is therefore granted as to those claims and they are hereby dismissed.
IT IS THEREFORE ORDERED that Respondent’s motion to dismiss claims 1 through
5 and 7 through 14 (Dkt. No. 24) is GRANTED. Pugh may proceed on his claim that his appellate
counsel was ineffective under the Fifth, Sixth, and Fourteenth Amendments when he failed to
investigate and develop the issues described herein.
IT IS FURTHER ORDERED that Pugh’s motion to clarify the brief in opposition (Dkt.
No. 43) is GRANTED.

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IT IS FURTHER ORDERED that Pugh’s motion for reconsideration (Dkt. No. 44) is
DENIED.
IT IS FURTHER ORDERED that within 60 days of the date of this order Respondent
shall answer the remaining claim in the petition, complying with Rule 5 of the Rules Governing
§ 2254 Cases.
IT IS FURTHER ORDERED that the parties shall abide by the following schedule
regarding the filing of briefs on the merits of Pugh’s remaining claim: (1) Pugh shall have 45 days
from the filing of Respondent’s answer within which to file his brief in support of his petition; (2)
Respondent shall have 45 days following the filing of Pugh’s initial brief within which to file a
brief in opposition; and (3) Pugh shall have 30 days following the filing of Respondent’s
opposition brief within which to file a reply brief, if any.
Pursuant to Civil Local Rule 7(f), the following page limitations apply: briefs in support of
or in opposition to the habeas petition must not exceed thirty pages and reply briefs must not
exceed fifteen pages, not counting any caption, cover page, table of contents, table of authorities,
and/or signature block.
IT IS FURTHER ORDERED that Pugh is required to submit all correspondence and
legal material to:
Honorable William C. Griesbach
c/o Office of the Clerk
United States District Court
Eastern District of Wisconsin
125 S. Jefferson Street, Suite 102
Green Bay, WI 54301
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.

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Because Pugh’s filings will be electronically scanned and entered on the docket upon
receipt by the clerk, Pugh need not mail to counsel for the Respondent copies of documents sent
to the Court.
Dated at Green Bay, Wisconsin this 7th

day of September, 2021.
s/ William C. Griesbach
William C. Griesbach
United States District Judge

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