Lietz v. Matz et al

Filing 24

DECISION AND ORDER signed by Judge Lynn Adelman on 9/29/15 denying the petition for a writ of habeas corpus. The Clerk shall enter final judgment. I will not issue a certificate of appealability. Further ordering petitioners motion to deny responden ts enlargement of time 14 is DENIED as moot and petitioners motion to enlarge the record and motion for evidentiary hearing 15 are DENIED. Further ordering petitioners motion to open records 17 is DENIED, petitioners motion for extension of time 20 is DENIED as moot and that petitioners motion for scheduling 22 is DENIED. (cc: all counsel, via USPS to petitioner) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
_____________________________________________________________________
THADDEUS M. LIETZ,
Petitioner,
v.

Case No. 14-cv-0944

RANDY HEPP, Warden,
Fox Lake Correctional Institution,
Respondent.
_____________________________________________________________________
DECISION AND ORDER
Thaddeus Lietz has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner claims that the prosecutor in his criminal case intimidated him into
waiving his preliminary hearing and entering a plea, violating his constitutional rights, and
that other people, including the judge, were aware of the intimidation and did nothing to
remedy it, also violating his constitutional rights.1 Respondent argues that petitioner has
procedurally defaulted these claims. I now address respondent’s procedural default
argument as well as several motions by petitioner.
Petitioner challenges three convictions, all of which were consolidated in the state
court proceedings. In January 2011, petitioner pled no contest to two counts of criminal
trespass to a dwelling, one count of theft, and two counts of felony bail jumping. Petitioner
was sentenced to two years confinement and two years of extended supervision for the bail
jumping charge and to probation for the other charges. Petitioner filed a post-conviction
motion and raised the issue of prosecutorial intimidation as well as other issues. The trial
court denied the post-conviction motion, and petitioner appealed his judgment of conviction

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I will collectively refer to these as petitioner’s prosecutorial intimidation claims.

and the order denying the post-conviction motion to the Wisconsin Court of Appeals. In his
appeal, petitioner challenged the trial court’s denial of his motion to withdraw his pleas but
did not raise the issue of prosecutorial intimidation. The Wisconsin Court of Appeals
affirmed the trial court in February 2013. Resp. Ex. D (ECF No.16-6). Petitioner then filed
a motion for reconsideration with the court of appeals and attempted to raise the issue of
prosecutorial intimidation, but this motion was denied in March 2013 as untimely. Resp’t’s
Br. in Opp’n Ex. A (ECF No. 18-1). Petitioner then petitioned the Wisconsin Supreme Court
for review of the court of appeals decision, raising the prosecutorial intimidation issue
again. The Wisconsin Supreme Court denied review. Resp. Ex. H (ECF No. 16-10).
Respondent argues that I must deny the habeas petition because petitioner did not
exhaust his prosecutorial intimidation claims and therefore has procedurally defaulted
them. To exhaust a federal claim, a petitioner must “fairly present” it to all levels of the
state judiciary. O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Lockheart v. Hulick, 443 F.3d
927, 929 (7th Cir. 2006). To satisfy this requirement, petitioner must present both the
operative facts and the legal principles that control the claim to each state court. Bolton v.
Akpore, 730 F.3d 685, 694–95 (7th Cir. 2013). If petitioner does not fairly present his
federal claim to all levels of the state judiciary, he is said to have procedurally defaulted the
claim, which means I cannot consider it on federal habeas review. Richardson v. Lemke,
745 F.3d 258, 268 (7th Cir. 2014).
In this case, it is clear that petitioner did not fairly present his prosecutorial
intimidation claims to the Wisconsin Court of Appeals. His appeal instead focused on
alleged deficiencies with his plea, such as whether the court’s acceptance of the plea was
appropriate given his denial of an element of one of the charges, the judge’s questioning
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of his father, and the judge’s consideration of “extrajudicial information.” See Resp. Ex. B
(ECF No. 16-4). Although petitioner attempted to raise his prosecutorial intimidation claim
with the court of appeals in his motion for reconsideration, the court determined that the
motion was untimely and denied it as such. Resp’t’s Br. in Opp’n Ex. A (ECF No. 18-1).
Thus, petitioner did not give the court of appeals a fair opportunity to review his
prosecutorial intimidation claim and has failed to exhaust his state court remedies. Further,
because petitioner failed to raise this issue at every level of the state judiciary and it is too
late to do so now, he has procedurally defaulted his claim. See Lewis v. Sternes, 390 F.3d
1019, 1026 (7th Cir. 2004) (“A habeas petitioner who has exhausted his state court
remedies without properly asserting his claim at each level of state court review has
procedurally defaulted that claim.”); see also State v. Escalona-Naranjo, 185 Wis. 2d 168,
181 (1994) (concluding that collateral post-conviction review of a claim is barred unless a
defendant raises the claim at all levels on direct appeal).
I may not consider procedurally defaulted claims unless petitioner shows either (1)
cause for, and prejudice from, the default, or (2) that failure to consider the claim would
result in a fundamental miscarriage of justice. Bolton, 730 F.3d at 696. Petitioner attempts
to show both.
The cause and prejudice exception to procedural default requires petitioner to show
some type of external impediment that prevented him from presenting his federal claim to
the state court. Murray v. Carrier, 477 U.S. 478, 492 (1986). To show prejudice, petitioner
must present evidence that the alleged impediments “worked to his actual and substantial
disadvantage.” Id. at 494–95. Petitioner argues that he was unable to timely present his

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prosecutorial intimidation claim to the court of appeals because of two issues he had in
obtaining an affidavit to support his claim that the prosecutor intimidated him. First, he
argues that the prison library threw away all of his legal documents, including his original
supporting affidavit from a person petitioner does not identify. Second, he argues that after
the prison library threw away his original affidavit, he had trouble obtaining a second
affidavit from his parents, who also witnessed the prosecutorial intimidation, because of
his mother’s ongoing health problems. He argues that without an affidavit from a witness
to support his prosecutorial intimidation claim, he was unable to raise this issue with the
court of appeals.
I reject petitioner’s argument. Petitioner offers no justifiable reason as to why he
could not obtain an affidavit from a witness to support his prosecutorial intimidation claim
in the two years between 2011, when the intimidation allegedly occurred, and 2013, when
he appealed the trial court’s decision to the court of appeals. Assuming the prison library
threw away his original affidavit and his mother’s health prohibited her from providing an
affidavit until after the court of appeals had issued a decision, petitioner offers no
explanation as to why it took so long to obtain an affidavit from his father, who also
witnessed the alleged intimidation, was not suffering health problems, and eventually also
signed the second affidavit. Additionally, petitioner does not explain why he did not or could
not raise the issue in his appellate brief without a supporting affidavit. Petitioner did not
include a supporting affidavit in his post-conviction motion to the trial court, and it is unclear
what prevented him from similarly appealing the trial court’s decision on the issue without
an affidavit. Finally, even assuming the prison library’s confiscation of his original affidavit
combined with the delay in obtaining a second affidavit from his parents because of his
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mother’s health concerns constitutes cause for the procedurally default, petitioner cannot
show that these delays in the procurement of an affidavit prejudiced his appeal. Even if he
had filed an affidavit with the court of appeals, it would not have considered it because the
affidavit was not presented to the trial court. See State v. Lass, 194 Wis. 2d 591, 604–05
(Ct. App. 1995) (stating that the court of appeals may only consider documents contained
in the trial court record). Thus, I conclude that petitioner has failed to show cause and
prejudice for the procedural default.
To have a default excused because of a fundamental miscarriage of justice, a
petitioner must demonstrate actual innocence. See Schlup v. Delo, 513 U.S. 298 (1995);
Coleman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014). To demonstrate actual innocence,
a petitioner must show that, in light of new evidence, it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable doubt. Schlup,
513 U.S. at 327. Petitioner argues several reasons why the miscarriage of justice exception
should apply, but he does not argue actual innocence or attempt to show new evidence
to support such a claim. See Pet’r’s Reply at 5–6 (ECF No. 19) (stating petitioner’s belief
that “a claim of innocence is irrelevant”). Because he has failed to show actual innocence,
the fundamental miscarriage of justice exception does not apply.
Thus, I conclude that petitioner has procedurally defaulted his prosecutorial
intimidation claims because he failed to timely raise it with the court of appeals, thus not
giving the court of appeals a fair opportunity to consider the claim. Further, petitioner has
not shown that the cause and prejudice or fundamental miscarriage of justice exceptions
warrant consideration of his claims on the merits. Therefore, I may not consider the merits
of petitioner’s prosecutorial intimidation claims, and I will deny his petition.
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Petitioner has also filed several motions. I will deny petitioner’s motion to deny
respondent’s request for an enlargement of time as moot because I received his motion
after I had granted respondent additional time to file an answer. I will also deny petitioner’s
motion for an extension of time to file a reply as moot because I had already received
petitioner’s reply when petitioner filed the request for additional time. Because I have
concluded that I may not consider the merits of petitioner’s claims, I will deny his motion
the enlarge the record, motion for an evidentiary hearing, motion to open records, and
motion for scheduling.
THEREFORE, IT IS ORDERED that the petition for a writ of habeas corpus is
DENIED. The Clerk shall enter final judgment. Pursuant to Rule 11 of the Rules Governing
§ 2254 Cases, I find that the petitioner has not made the showing required by 28 U.S.C.
§ 2253(c)(2), and therefore I will not issue a certificate of appealability.
IT IS FURTHER ORDERED that petitioner’s motion to deny respondent’s
enlargement of time ECF No. 14) is DENIED as moot.
IT IS FURTHER ORDERED that petitioner’s motion to enlarge the record and
motion for evidentiary hearing (ECF No. 15) are DENIED.
IT IS FURTHER ORDERED that petitioner’s motion to open records (ECF No. 17)
is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for extension of time (ECF No.
20) is DENIED as moot.
IT IS FURTHER ORDERED that petitioner’s motion for scheduling (ECF No. 22) is
DENIED.

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Dated at Milwaukee, Wisconsin, this 29th day of September, 2015.

s/ Lynn Adelman
__________________________
LYNN ADELMAN
District Judge

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