Blue v. Foster

Filing 21

DECISION AND ORDER signed by Magistrate Judge William E Duffin. IT IS THEREFORE ORDERED that respondent's 11 motion to dismiss is granted. Petitioner Randall Blue's 1 petition for a writ of habeas corpus is dismissed with prejudice. (cc: all counsel, petitioner) (asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RANDALL BLUE,
Petitioner,
v.

Case No. 14-CV-1537

BRIAN FOSTER,
Respondent.
DECISION AND ORDER
On December 10, 2014, Randall Blue, incarcerated pursuant to a state court
judgment, filed a petition for a writ of habeas corpus. (ECF No. 1.) Brian Foster, the
respondent by virtue of his position as warden of Green Bay Correctional Institution,
moved to dismiss Blue’s petition, alleging that Blue failed to exhaust his state court
remedies and that his claims are now procedurally defaulted. (ECF No. 11.) The parties
have consented to the full jurisdiction of a magistrate judge (ECF Nos. 14, 15) and the
motion to dismiss is ready for resolution.
FACTS
In late 2010, a jury in the Circuit Court for Brown County found Blue guilty of
second degree sexual assault, attempted second degree sexual assault, and bail

jumping. (ECF No. 1 at 2.) The circuit court imposed consecutive sentences totaling
fourteen years of initial confinement and twenty-three years of extended supervision.
On direct appeal in February 2012, Blue’s appointed counsel filed a no-merit
report under Wis. Stat. § 809.32(3), which explained why any conceivable argument on
appeal lacked merit. In a separate brief, Blue listed twenty reasons (some of which were
simply one sentence conclusions) why his appeal had merit. (ECF No. 1-1.) The
Wisconsin Court of Appeals affirmed the judgment of conviction, finding that “there
[wa]s no arguable merit to any issue that could be raised on appeal.” (ECF No. 12-1 at
12.)
In July 2013, Blue filed a petition for review in the Wisconsin Supreme Court.
(ECF No. 12-1.) He requested that the Court consider one issue: whether his sexual
assault charges were multiplicitous. (ECF No. 12-1 at 3.) However, he also asked the
Court to “incorporate[] herein by reference” all of his arguments contained in his brief
to the Wisconsin Court of Appeals (ECF No. 12-1 at 5) and invited the Court to review
those arguments, reiterating that
because Mr. Blue is of the opinion that only th[e multiplicity] claim
warrants supreme court review[,] he has only set forth arguments
supporting it for review. [H]owever, Mr. Blue’s petition should be viewed
by this court, and any future court, as preserving for federal review all
claims presented here and before the Wisconsin Court of Appeals.
(ECF No. 12-1 at 9 (emphasis in original).) His petition for review was denied.

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On December 10, 2014, Blue filed a petition for a writ of habeas corpus in federal
court. (ECF No. 1.) His habeas petition sets forth eight alleged constitutional violations
that occurred during his trial and sentencing, including that the trial judge and jury
were biased; that his trial counsel provided ineffective assistance; that he was denied an
alternative trial counsel; that the jury instructions failed to include a lesser offense; and
that the chief witness gave false testimony.
ANALYSIS
Before a federal court can reach the merits of a petition for a writ of habeas
corpus, a prisoner must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1). In the
interest of comity, the State deserves the first “‘opportunity to pass upon and correct’
alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). To provide the State with the
necessary “opportunity,” the prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme court with powers of discretionary
review), thereby alerting that court to the federal nature of the claim. Baldwin v. Reese,
541 U.S. 27, 29 (2004) (citing Duncan, 513 U.S. at 365-66).
In moving to dismiss Blue’s habeas petition, Foster correctly points out that
Blue’s petition for review filed with the Wisconsin Supreme Court expressly raised only
one argument, that his charges were multiplicitous. Blue attempted to preserve federal
review of the claims raised in his appellate brief by asking the Wisconsin Supreme

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Court to deem the arguments raised there incorporated into his Supreme Court petition.
Unfortunately for him, a petition to a state supreme court “must contain each
contention, and not just point to some other document where it might be located.”
Lockheart v. Hulick, 443 F.3d 927, 929 (7th Cir. 2006); see also Tolonen v. Hepp, No. 09-CV498, 2010 WL 2540953, at *7 (E.D. Wis. June 18, 2010); Ford v. Wallace, No. 06-C-1052,
2007 WL 2407055, at *6 (E.D. Wis. Aug. 20, 2007). State court judges are not expected to
scour lower courts’ dockets in search of potential arguments. See Baldwin, 541 U.S. at 30.
The Court of Appeals for the Seventh Circuit has noted that, “if state rules
entitled litigants to present arguments by incorporation, then use of that approved
device would preserve these issues.” Lockheart, 443 F.3d at 929. Wisconsin does not have
such a rule. See Obriecht v. Bartow, No. 06-C-0253-C, 2006 WL 3246276, at *3 (W.D. Wis.
Nov. 6, 2006). In fact, Wisconsin explicitly requires that “[a]ll contentions in support of
the petition must be set forth in the petition.” Wis. Stat. § 809.62(2)(e). Blue did not fairly
present his claims to the Wisconsin Supreme Court by instructing it to review his
appellate brief. Accordingly, his claims for habeas relief remain unexhausted.
The next question is whether Blue is barred from now raising his unexhausted
claims in state court. So long as state court remedies remain available, a petition
containing unexhausted claims may be dismissed without prejudice in order to allow
the petitioner to return to federal court after exhaustion. See Slack v. McDaniel, 529 U.S.
473, 486 (2000). But if “the court to which the petitioner would be required to present

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his claims in order to meet the exhaustion requirement would now find the claims
procedurally barred,” the claims are “procedurally defaulted.” Coleman v. Thompson, 501
U.S. 722, 735 n.1 (1991). Federal courts will not consider procedurally defaulted claims,
absent a showing of either a miscarriage of justice, or cause and prejudice. Id. at 750; see
also Woodford v. Ngo, 548 U.S. 81, 93 (2006).
Foster asserts that Blue’s claims are procedurally defaulted and that Blue has not
shown that either exception applies. (ECF No. 19.) Blue’s response is somewhat
confusing. He appears to argue that he can still exhaust his claims by filing a postconviction motion in state court. (At least that is one reasonable interpretation of his
arguments given his pro se status.)
In Wisconsin, a prisoner who fails to raise a claim on direct appeal is barred from
raising that claim in a subsequent motion unless he provides a “sufficient reason” for
his failure to raise the claim in his direct appeal. Wis. Stat. § 974.06(4); Northern v.
Boatwright, 594 F.3d 555, 559 (7th Cir. 2010) (citing State v. Escalona-Naranjo, 185 Wis.2d
168, 517 N.W.2d 157 (1994)). Blue has not articulated any reason that is recognized
under Wisconsin law as sufficient for his failure to raise his claims before the Wisconsin
Supreme Court. He appears to assert that the alleged ineffective assistance of his
attorneys caused his omission. But the alleged ineffective assistance to which he points
took place during his trial. He does not explain how the alleged ineffective assistance of

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his trial attorney hampered his ability to exhaust his claims in the Wisconsin supreme
court.
Blue’s lack of legal expertise is not a sufficient reason for his failure to raise the
federal claims in his Wisconsin Supreme Court petition. As far as this court can
determine, no Wisconsin court has permitted a prisoner a second opportunity to
challenge a conviction solely because he was ignorant of the law. See Jackson v. Baenen,
No. 12-CV-00554, 2012 WL 5988414, at *1 (E.D. Wis. Nov. 29, 2012) (citing State v.
Maddox, 2012 WI App 118, 344 Wis. 2d 519, 822 N.W.2d 736) (unpublished)). To the
contrary, several Wisconsin courts of appeal have rejected such ignorance of the law
claims. See, e.g., State v. Edwards, 2010 WI App 46, ¶ 5, 324 Wis. 2d 305, 784 N.W.2d 182
(unpublished) (“Ignorance of the law is not a sufficient excuse to challenge a judgment
of conviction a second time.”); State v. Kidd, 2011 WI App 44, ¶ 7, 332 Wis. 2d 316
(unpublished); State v. Jensen, 2004 WI App 89, ¶ 30, 272 Wis.2d 707, 729 (“Ignorance of
the law is no defense.”). Because it is clear that Blue can no longer exhaust his remedies
in state court, his claims are procedurally defaulted.
Such procedural default can be excused only if a petitioner shows that dismissal
would result in a miscarriage of justice, Schlup v. Delo, 513 U.S. 298, 315 (1995), or shows
cause for the default and prejudice attributable thereto, Edwards v. Carpenter, 529 U.S.
446, 451 (2000). Blue does not argue that the first exception applies, and so it warrants
no further discussion. Lee v. Foster, 750 F.3d 687, 694 (7th Cir. 2014) (citing Franklin v.

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Gilmore, 188 F.3d 877, 884–85 (7th Cir. 1999)) (refusing to consider procedural default
exception not argued by petitioner). Under the cause-and-prejudice exception, showing
“cause” ordinarily requires that the petitioner demonstrate that an “objective factor
external to the defense impeded [his] efforts to comply with the State’s procedural
rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Even liberally construing Blue’s brief,
he has not identified any such external impediment. Because Blue has not demonstrated
cause, the court need not consider prejudice.
With all of the claims in Blue’s habeas petition procedurally defaulted, Foster’s
motion to dismiss must be granted.
IT IS THEREFORE ORDERED that respondent’s motion to dismiss (ECF No.
11) is granted. Petitioner Randall Blue’s petition for a writ of habeas corpus (ECF No. 1)
is dismissed with prejudice. The Clerk of Court is directed to enter judgment
accordingly.
The court will not issue a certificate of appealability. 28 U.S.C. § 2253(c)(2).
Petitioner retains the right to seek a certificate of appealability from the Court of
Appeals under Rule 22(b) of the Federal Rules of Appellate Procedure.
Dated at Milwaukee, Wisconsin this 1st day of September, 2015.

WILLIAM E. DUFFIN
U.S. Magistrate Judge

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