Ziegler v. Schwochert

Filing 41

ORDER signed by Judge Pamela Pepper on 10/8/2015 Screening Complaint and Requiring Response. (cc: all counsel, copy of the order sent to the petitioner by US Mail on October 8, 2015, and copy of the order and petition sent to the Attorney General for the State of Wisconsin, and the Warden of Dodge Correctional Institution by US Mail on October 8, 2015.)(kgw)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SCOTT EDWARD ZIEGLER,

Case No. 13-cv-609-pp

Petitioner,
v.
JIM SCHWOCHERT,
Respondent.

ORDER SCREENING COMPLAINT AND REQUIRING A RESPONSE
_____________________________________________________________________________
I.

INTRODUCTION
On May 31, 2013, Scott Edward Ziegler, representing himself, filed a

petition for habeas corpus relief pursuant to 28 U.S.C. §2254. Dkt. No. 1. With
the petition, he filed a motion asking the court to appoint counsel to represent
him. Dkt. No. 3. Within the motion to appoint counsel, the petitioner indicated
that he had “two pending petitions in the Wisconsin State Court System,” and
asked the court to hold his case “in abeyance” until the state court resolved
those petitions and while the petitioner “attempted to exhaust all
grounds/issues in state court.” Id.
On June 7, 2013, Judge Adelman, to whom this case was assigned at
that time, screened the petition. Dkt. No. 6. While the court found that it did
“not plainly appear that the petitioner is not entitled to relief in the district
court,” it ordered the respondent to indicate whether he “oppose[d] Ziegler’s

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request for stay and abeyance.” Id. at 1-2. On July 2, 2013, the respondent
indicated that it did not oppose the petitioner’s request. Dkt. No. 12.
On July 12, 2013, Judge Adelman stayed the case “pending the
conclusion of petitioner’s state-court proceedings.” Dkt. No. 13. The court
ordered the petitioner to “inform the court and the respondent every ninety
days of the status of his state-court cases,” and to notify the court and the
respondent “[w]ithin thirty days after the conclusion of his state-court
proceedings.” Id. Since that order, the petitioner has consistently updated the
court and the respondent on the status of his state court proceedings. See Dkt.
Nos. 14-19; 21-25; 28-34; 37; and 39-40. On December 30, 2014, the case
transferred to Judge Pepper. On August 26, 2015, the petitioner filed his most
recent status report. Dkt. No. 40. When reviewing that document, the court
reviewed the entire case history.
II.

SCREENING THE PETITION
While Judge Adelman already has indicated, in his June 6, 2013

screening order, that the plaintiff may proceed on the complaint in general,
Dkt. No. 6, this court has screened the petition with regard to the specific
claims.
A.

It appears that the petitioner has exhausted his state court
remedies.

In order to decide whether to allow this case to move forward, the court
first must determine whether the petitioner appears, on the face of his
complaint, to have exhausted his state remedies. Section 2254 states, “An
application for a writ of habeas corpus on behalf of a person in custody
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pursuant to the judgment of a State court shall not be granted unless it
appears that . . . the applicant has exhausted the remedies available in the
courts of the State . . . .” The United States Court of Appeals for the Seventh
Circuit has held that a district court judge cannot consider the merits of a
petitioner’s habeas argument “unless the state courts have had a full and fair
opportunity to review them.” Farrell v. Lane, 939 F.2d 409, 410 (7th Circ.
1991). This means, basically, that before a person can get a federal judge to
review his arguments on a habeas petition, that person first must appeal the
issue all the way up to the highest court in the state for a ruling on the merits.
Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir. 2007) (citations omitted).
According to the petition, a jury in Waukesha County Circuit Court
convicted the petitioner of repeated first degree sexual assault, interference
with child custody, two counts of child enticement, second degree sexual
assault with use of force, seven counts of second degree sexual assault of a
child, and two counts of child abuse. Dkt. No. 1 at 2. The judge sentenced the
petitioner to thirty-five years of incarceration and twenty years of extended
supervision. Id. The petitioner asserts that he filed an appeal with the
Wisconsin Court of Appeals on April 15, 2011, and that the court of appeals
certified the case to the Supreme Court of Wisconsin on November 16, 2011.
Id. at 3. On July 3, 2012, the Supreme Court of Wisconsin denied the appeal
and affirmed the convictions. Id. A review of the petitioner’s state court docket
on the Wisconsin Court System Circuit Court Access (“CCAP”) confirms these
dates and rulings. State of Wisconsin v. Ziegler, No. 2008CF000120.
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The state-court docket also reveals that the petitioner went on to file
several petitions for habeas corpus relief with the state court, with the
Wisconsin Court of Appeals, and with the Supreme Court of Wisconsin. At each
level, the courts denied his petitions. The petitioner also filed a post-conviction
motion, which the state court denied, and which the Wisconsin Court of
Appeals and the Wisconsin Supreme Court affirmed. The final dismissal by the
Wisconsin Supreme Court occurred on June 3, 2015.
Finally, the petitioner indicates that the petitioner did not file a petition
for certiorari in the United States Supreme Court. Dkt. No. 1 at 4. The deadline
for him to have done so would have passed on October 1, 2012—ninety days
after the Wisconsin Supreme Court’s judgment became final. See Sup. Ct. R.
13(1).
Based on the assertions the petitioner makes on the face of his petition,
based on the status reports provided by the petitioner, and based on this
court’s review of the petitioner’s state-court docket, it appears that the
petitioner has exhausted his state remedies. The court notes, however that it
has not made a full review of whether the plaintiff properly exhausted his claim
or whether he has procedurally defaulted on the claim; the respondent may
raise objections to exhaustion or default in his pleadings.
B.

The petitioner has raised a claim for which federal habeas relief
might be available.

The petition consists of one hundred and seven pages, listing sixty-eight
grounds for relief. Dkt. No. 1. Each of the sixty-eight grounds focuses on one
claim—that the petitioner’s state-court trial and appellate lawyers were
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ineffective, and thus that he was denied his Sixth Amendment right to effective
assistance of counsel. This court agrees with Judge Adelman that the petitioner
has alleged sufficient facts to assert a plausible Sixth Amendment right to
counsel claim, and the court will allow him to proceed on that claim.
III.

CONCLUSION
For the above reasons, the court ORDERS that the petitioner may

proceed on one claim, ineffective assistance of counsel in violation of his rights
under the Sixth Amendment.
The court ORDERS that within sixty (60) days of the date of this order,
the respondent shall ANSWER OR OTHERWISE RESPOND to the petition,
complying with Rule 5 of the Rules Governing §2254 Cases, and showing
cause, if any, why the writ should not issue.
The court ORDERS that the parties must comply with the following
schedule for filing briefs on the merits of the petitioner’s claims:
(1) the petitioner has forty-five (45) days after the respondent files his
answer to file his brief in support of his petition;
(2) the respondent has forty-five (45) days after the petitioner files his
initial brief to file the respondent’s brief in opposition; and
(3) the petitioner has thirty (30) days after the respondent files his
opposition brief to file a reply brief, if the petitioner chooses to file such a brief.
If, instead of filing an answer, the respondent files a dispositive motion,
the respondent must include a brief and other relevant materials in support of
the motion. The petitioner then must file a brief in opposition to that motion
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within forty-five (45) days of the date the respondent files the motion. If the
respondent chooses to file a reply brief, he must do so within thirty (30) days
of the date the petitioner files the opposition brief.
Pursuant to Civil Local Rule 7(f), briefs in support of or in opposition to
the habeas petition and any dispositive motions shall not exceed thirty (30)
pages, and reply briefs may not exceed fifteen (15) pages, not counting any
statements of facts, exhibits and affidavits.
Pursuant to the Memorandum of Understanding between the Attorney
General and this court, the court will send a copy of the petition and this order
to the Attorney General for the State of Wisconsin and to the Warden of Dodge
Correctional Institution.
Dated at Milwaukee, this 8th day of October, 2015.

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