Rodriguez v. Hepp
DECISION AND ORDER signed by Magistrate Judge William E Duffin. IT IS THEREFORE ORDERED that the petition for a writ of habeas corpus is denied. (cc: all counsel, petitioner)(asc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 15-CV-478
WARDEN RANDALL R. HEPP,
DECISION AND ORDER
Petitioner Manuel Rodriguez is incarcerated pursuant to a judgment of the
Milwaukee County Circuit Court. (ECF No. 14-1.) On April 8, 2011, Rodriguez pled
guilty to one count of first-degree sexual assault of a child and one count of repeated
first-degree sexual assault of a child. (ECF No. 14-1.) As to the first offense, the court
sentenced Rodriguez to 10 years in prison. (ECF No. 14-1.) As to the second offense, the
court sentenced him to 10 years of initial confinement to be followed by 5 years
extended supervision, to be served consecutive to count one. (ECF No. 14-1.)
On appeal to the Wisconsin Court of Appeals, Rodriguez’s appointed attorney
filed a no-merit report. (ECF No. 14-2.) As issues of potential merit, counsel raised the
question of whether Rodriguez’s pleas were knowing, voluntary, and intelligent and
whether the sentence imposed was an abuse of discretion. (ECF No. 14-2.) Rodriguez,
pro se, responded to counsel’s no-merit report wherein he expanded upon the claim
that his plea was involuntary and added a claim that his trial counsel was ineffective.
(ECF No. 14-3.)
The Wisconsin Court of Appeals summarily affirmed Rodriguez’s conviction.
(ECF No. 14-5.) The Wisconsin Supreme Court denied review. (ECF No. 14-8.)
Rodriguez filed the present petition for a writ of habeas corpus on April 23, 2015.
(ECF No. 1.) He did not submit a brief along with his petition. The petition was
randomly assigned to this court, and all parties subsequently consented to have this
court enter final judgment. (ECF Nos. 3, 7.)
Rodriguez presented three claims for relief in his petition. Although presented as
three claims, for purposes of review the court separates his first claim into two claims.
Rodriguez first alleges that his trial counsel was ineffective for failing to investigate
Rodriguez’s version of events, the contradictions in the victims’ statements, and one
victim’s history of making false statements. Second, he alleges that his plea was
involuntary. Third, he alleges that he was denied the opportunity to present witnesses
in his favor. Finally, he argues that his appellate counsel was ineffective because she
failed to undertake any investigation into his case.
Generally, before a petitioner may seek habeas corpus relief in federal court, he
must first exhaust all available avenues for relief in the state courts. 28 U.S.C.
§ 2254(b)(1)(a); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). There is no
indication that Rodriguez presented to any state court his claim that his appellate
counsel was ineffective. Such a claim would ordinarily be presented to the Wisconsin
Court of Appeals by what is commonly referred to as a Knight petition. See State v.
Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992). There is no indication that Rodriguez is
foreclosed from presenting his claim for ineffective assistance of appellate counsel in
this manner. Because Rodriguez has not exhausted his state court remedies as to that
claim, it means that his habeas petition is “mixed” in that it contains both exhausted
and unexhausted claims.
When a petition for a writ of habeas corpus contains even one unexhausted
claim, federal law generally prohibits the court from granting the petition, even on a
claim for which the petitioner has exhausted his state court remedies. See Rose v. Lundy,
455 U.S. 509, 522 (1982). When the court identifies a petition as a mixed petition, the
petitioner generally has two options. First, he could return to state court to exhaust his
unexhausted claim, often accompanied by a request that the federal court stay the
federal proceedings and hold his petition in abeyance while he does so. Second, he
could withdraw his unexhausted claim, thereby enabling the court to consider the
merits of his exhausted claims but foregoing the opportunity to have a federal court
consider the unexhausted claim.
However, stay and abeyance is appropriate in only limited circumstances. Rhines
v. Weber, 544 U.S. 269, 277 (2005). If employed too frequently the stay and abeyance
procedure would undermine Congress’s goal of encouraging finality of state court
judgments and streamlining federal habeas proceedings. Id. Thus, a stay is appropriate
only if the claim the petitioner seeks to present in the state court is not clearly meritless.
Id. Additionally, there must have been good cause for the petitioner’s failure to have
sought relief earlier in state court. Id.
Rodriguez does not ask this court to stay these proceedings and hold them in
abeyance so that he can return to state court to exhaust his remedies regarding his claim
of ineffective assistance of appellate counsel. Having not even requested that relief,
Rodriguez obviously has made no effort to demonstrate that such relief is appropriate
here. Nor has he presented any argument that good cause exists for his failure to have
earlier sought relief on that claim in state court.
As a result, the court could dismiss the petition in its entirety without
considering the merits of any of his claims. Because federal law generally limits a
petitioner to a single petition for a writ of habeas corpus, dismissal would mean that
Rodriguez likely would be forever barred from challenging any aspect of his conviction
in a federal petition for a writ of habeas corpus. Consequently, as an alternative, the
court will deem Rodriguez’s claim regarding the ineffective assistance of appellate
counsel withdrawn and proceed to the merits of those claims as to which he has
exhausted his state court remedies.
Standard of Review
A federal court may consider habeas relief for a petitioner in state custody “only
on the ground that he is in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. §2254(a). Following the passage of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may grant habeas relief
only if the state court decision was “either (1) ‘contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States,’ or (2) ‘based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.’” Miller v. Smith, 765 F.3d 754, 75960 (7th Cir. 2014) (quoting 28 U.S.C. § 2254(d)(1), (2)). It is not enough for the federal
court to conclude that the state court’s decision was incorrect. Carter v. Butts, 760 F.3d
631, 635 (7th Cir. 2014) (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000); Rastafari v.
Anderson, 278 F.3d 673, 688 (7th Cir. 2002)). Rather, the decision of the state court must
have been unreasonable. Id. In the context of a decision that is allegedly contrary to
clearly established federal law, the petitioner must show that “there is no possibility
fair-minded jurists could disagree that the state court’s decision conflicts with [Supreme
Court] precedents.” Id. (quoting Harrington v. Richter, 131 S. Ct. 770, 787 (2011)).
Voluntariness of Plea
Rodriguez’s “guilty plea represents a break in the chain of events which has
preceded it in the criminal process. When a criminal defendant has solemnly admitted
in open court that he is in fact guilty of the offense with which he is charged, he may
not thereafter raise independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S.
258, 267 (1973). Thus, a guilty plea generally closes the door to claims of constitutional
error. Exceptions are claims that his guilty plea was involuntary, including instances
where his plea was rendered involuntary due to the ineffective assistance of counsel. See
McMann v. Richardson, 397 U.S. 759, 770-71 (1970).
In his petition, Rodriguez alleges he was “coerced and threatened into agreeing
to a non-binding agreement.” (ECF No. 1 at 3.) In his response to his appellate counsel’s
no-merit report, Rodriguez argued that his guilty plea was involuntary because he had
not been informed that he was pleading guilty to a charge for which there was a
mandatory minimum of 25 years of incarceration. (ECF No. 14-3 at 3.) He also stated
that, although he can understand English, he does not have “indepth [sic] grasp of it.”
(ECF No. 14-3 at 4.) Therefore, he contended he should have been provided a translator.
(ECF No. 14-3 at 4.)
As the court of appeals noted, Rodriguez was not subject to a 25-year mandatory
minimum sentence. (ECF No. 1-1 at 3.) That minimum sentence became law in 2006.
(ECF No. 1-1 at 3.) Because Rodriguez was charged with conduct occurring before the
change in the law, the 25-year mandatory minimum sentence did not apply in his case.
(ECF No. 1-1 at 3.)
As for his claim that any limitation in his ability to understand English affected
the voluntariness of his plea, the court of appeals noted that Rodriguez failed to point to
any aspect of the proceedings that he did not fully understand. (ECF No. 1-1 at 3.)
Rodriguez’s claim to this court on this point is undeveloped. He offers no details as to
the alleged coercion or threats he suffered or how his alleged lack of an “in-depth”
grasp of the English language came into play. Thus, this court is not presented with any
basis for concluding that his plea was involuntary, much less that the state court’s
decision rejecting that argument was unreasonable. As a result, the court must conclude
that Rodriguez is not entitled to habeas relief on this basis.
Ineffective Assistance of Trial Counsel
In light of Rodriguez’s guilty plea, the court’s focus regarding his claim of
ineffective assistance of trial counsel is on whether any alleged error by his attorney
rendered his guilty plea involuntary. Rodriguez must show a causal connection
between the constitutionally ineffective assistance and his guilty plea. See Hurlow v.
United States, 726 F.3d 958, 966 (7th Cir. 2013). Specifically, he must show “that the plea
agreement was the product of ineffective assistance of counsel or tainted by ineffective
assistance of counsel.” Id. at 967 (internal quotation marks and citations omitted).
“Strickland v. Washington, 466 U.S. 668, 687 (1984), establishes a two-prong test for
ineffective assistance of counsel claims: the defendant must first demonstrate that his
counsel’s performance was deficient, and second, that counsel’s deficient performance
prejudiced him.” Mertz v. Williams, 771 F.3d 1035, 1041 (7th Cir. 2014). The Strickland
standard is by itself deferential, and there is “a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Mertz, 771
F.3d at 1042 (quoting Strickland, 466 U.S. at 689). When the court is reviewing a claim of
ineffective assistance of counsel by way of a petition for a writ of habeas corpus, the
court’s review is doubly deferential. Campbell v. Smith, 770 F.3d 540, 547 (7th Cir. 2014)
(citing Harrington v. Richter, 562 U.S. 86, 105 (2011)). When reviewed in the habeas
context, not only must the attorney’s actions be outside “prevailing professional
norms,” but for a petitioner to obtain relief no reasonable jurist could disagree that
counsel’s performance was deficient. See Harrington, 562 U.S. at 105.
In his habeas petition Rodriguez alleges, “There is no court record showing that
counsel made any motions for discovery. There are no records that exist to show that
counsel made any requests of the police for police reports concerning the case or
witnesses.” (ECF No. 1 at 4.) He also alleges, “Counsel made no effort to investigate my
version of events …[;] my claims that witnesses had made contradictory reports to
police; that witnesses had a history of making false allegations.” (ECF No. 1 at 3.)
As recounted by the Wisconsin Court of Appeals,
Rodriguez also argues that his trial counsel was ineffective by failing to
investigate the following: (1) text messages by the victim in count one,
sent to Rodriguez’s granddaughter, stating that “Mother is going
ballistic,” “acting crazy,” and “blowing all this out of proportion,” and the
victim’s statement to Rodriguez’s granddaughter that the victim refused
to talk to police on three occasions; (2) a statement by the victim in count
two, made to Rodriguez’s daughter, that “maybe what I thought
happened really didn’t happen”; and (3) information that the victim in
count three was placed in Rodriguez’s care following the victim’s claim
that she had been sexually assaulted in her previous foster placement, and
that a physical examination of the victim revealed no sign of sexual
(ECF No. 1-1 at 5.) In response to his claim the court of appeals said:
None of the facts Rodriguez claims counsel should have investigated
would have provided evidence of Rodriguez’s innocence. The claimed text
messages by the victim as to count one would have indicated that the
victim’s mother was extremely upset upon learning of the sexual assault.
They also may have indicated that the victim, who was a teenager by the
time the criminal complaint was filed, was not as upset as her mother
when her mother first learned of the assault, which occurred when the
victim was five to six years old. The messages do not indicate the sexual
assault did not occur. Similarly, evidence that the victim refused to speak
to police on three occasions would not have established Rodriguez’s
innocence, particularly in light of the fact that the victim ultimately
disclosed the sexual assault to police.
Next, even if it had been established that the victim as to count two had
made a statement to Rodriguez’s daughter that “maybe what I thought
happened really didn’t happen,” that would not have established that the
charged sexual assault did not occur. According to the complaint, which
was filed when the victim was a teenager, the sexual assault occurred
when the victim was four to five years old. Significantly, the victim was
able to provide a detailed statement to police as to that assault. One
statement by the victim, apparently questioning her memory of the sexual
assault, would not have established reasonable doubt that the assault did
Finally, evidence that the victim as to count three had previously made a
claim of sexual assault and there was no supporting physical evidence
would not have established that the assault did not occur in this case. If
Rodriguez means that counsel should have obtained evidence that there
was no physical proof of the sexual assault in count three, that argument
lacks arguable merit as well. The charges in count three were based on
allegations of touching, digital penetration, and oral sexual contact, which
would not have been likely to result in physical evidence.
(ECF No. 1-1 at 6-7.)
Rodriguez has not offered any argument as to why the court of appeals’ decision
was unreasonable. The court finds that the court of appeals’ decision was not an
unreasonable application of clearly established federal law.
As to the narrower question of whether his trial attorney’s alleged errors
rendered Rodriguez’s guilty plea involuntary, the court is provided with no basis for
concluding that it did. Significantly, after a presentence investigation raised questions
as to whether Rodriguez truly acknowledged his guilt for the crimes to which he pled
guilty, the court asked Rodriguez if he wished to withdraw his guilty pleas (or even
simply to talk to his lawyer about withdrawing his guilty pleas). (ECF No. 14-10 at 5.)
Rodriguez confirmed that he wished to proceed. (ECF No. 14-10 at 5.) There is no
indication in the record that Rodriguez ever asked for a new attorney or complained
about his attorney’s performance. In short, aside from Rodriguez’s unadorned
allegations, there is nothing to suggest that any alleged ineffective assistance by
Rodriguez’s trial attorney led to him plead guilty. As a result, the court must conclude
that Rodriguez is not entitled to habeas relief on this basis.
Right to Present Witnesses
Rodriguez also argues, “I was denied due process under 5th & 6th amendments
by being denied the compulsory process to obtain witnesses and evidence in my favor,
and ultimately forcing me to accept a plea and denying me the right to a jury trial.”
(ECF No. 1 at 3.) He continues, “There is no court record showing that counsel made
any motions for discovery. There are no records that exist to show that counsel made
any requests of the police for police reports concerning the case or witnesses. My
reading and comprehension levels were too low at the time of my plea to attempt to
mount a legal defense.” (ECF No. 1 at 4.)
By pleading guilty, Rodriguez gave up any claim he might have had that his
Sixth Amendment right to compulsory process was violated. See Tollet, 411 U.S. at 267.
However, it appears that Rodriguez is actually arguing this his attorney’s alleged failure
to pursue discovery rendered his plea involuntary. Reframed in this manner, Rodriguez
is again arguing that the ineffective assistance of trial counsel rendered his plea
For the same reasons as articulated above, this claim also fails. Rodriguez does
not identify any specific detail that, had it been uncovered by counsel’s reasonable
efforts, would have led Rodriguez to forego his guilty plea. There is no evidence that his
attorney acted unreasonably, much less that any unreasonable conduct by his attorney
prejudiced Rodriguez and led him to plead guilty.
Because Rodriguez pled guilty, to obtain habeas relief he must show that his plea
was involuntary. Coercion, threats, or misinformation might render a guilty plea
involuntary. However, Rodriguez has failed to develop any argument that his plea
suffered from any such defect. Further, although baldly alleging that his trial counsel
was ineffective, Rodriguez never points to any specific error that led to his guilty plea.
Rodriguez has failed to show that the court of appeals’ decision was an
unreasonable application of clearly established federal law or based upon an
unreasonable determination of facts. Therefore, the court must deny his petition.
Finally, in accordance with 28 U.S.C. § 2253(c)(2) and Rule 11 of the Rules
Governing Section 2254 Cases, the court finds that Rodriguez has failed to make a
substantial showing of a denial of a constitutional right. Therefore, the court denies
Rodriguez a certificate of appealability.
IT IS THEREFORE ORDERED that the petition for a writ of habeas corpus is
denied. The Clerk shall enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 11th day of October, 2016.
WILLIAM E. DUFFIN
U.S. Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?