Rouse v. State of Wisconsin

Filing 4

DECISION AND ORDER signed by Judge Pamela Pepper on 12/18/2015 SCREENING 1 Habeas Petition and ORDERING petitioner to show cause why the petition should not be dismissed. (cc: all counsel; to petitioner by US Mail)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RICKY EARL ROUSE,
Plaintiff,
Case No. 15-CV-1184-pp
v.
STATE OF WISCONSIN,
Defendants.

DECISION AND ORDER SCREENING HABEAS PETITION (DKT. NO. 1)
AND ORDERING PETITIONER TO SHOW CAUSE
WHY THE PETITION SHOULD NOT BE DISMISSED

Ricky Earl Rouse filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. §2254. The petitioner, who is proceeding without a lawyer, is
incarcerated in a Wisconsin state prison. He is serving a 25-year sentence
imposed after he pleaded guilty to first degree reckless homicide. Id. at 1. In his
petition, he claims that his trial lawyer provided constitutionally deficient
representation because she encouraged him to plead guilty, “did not make any
defenses available” for him, and did not “do any of the things” he asked her to
do, which the petitioner claims renders his sentence unjust. Dkt. No. 1 at 5. He
also claims that he was not competent to understand what was happening
during his case because of PTSD and depression. Id. at 7.
In accordance with Rule 4 of the Rules Governing Section 2254 Cases,
the court must review, or “screen” the petition. Rule 4 states:

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If it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in
the district court, the judge must dismiss the petition
and direct the clerk to notify the petitioner. If the
petition is not dismissed, the judge must order the
respondent to file an answer, motion, or other
response within a fixed time, or to take other action
the judge may order.
When screening a habeas petition under Rule 4, the court analyzes whether it
appears that the petitioner has avoided statute of limitations bars, exhausted
the available state remedies, avoided procedurally defaulting his claim in state
court, and set forth a cognizable constitutional or federal law claim. For the
reasons explained below, the court orders the petitioner to show cause why the
court should not dismiss the petition under the doctrine of procedural default.
I.

BACKGROUND
In 2005, the petitioner pled guilty to one count of first-degree reckless

homicide. Dkt. No. 1 at 1. Court records publicly available in the petitioner’s
criminal case reflect that he initially entered a plea of not guilty by reason of
mental defect or disease (“NGI”). State v. Rouse, No. 2005CF1647, (Milw. Cty.
Cir. Ct.) (available at http://wcca.wicourts.gov (last visited December 15,
2015)). The circuit court ordered the petitioner to undergo competency and
mental health evaluations. Based on the evaluating doctor’s report, the court
found the petitioner competent to stand trial, and the petitioner withdrew his
NGI plea. He then entered a guilty plea to the charge of first-degree reckless
homicide, and the court dismissed the “while armed” aggravator and the charge
of felon in possession of a firearm.

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The habeas petition reflects that, about nine years later, the petitioner
filed a pro se post-conviction motion under Wis. Stat. §974.06 in the Milwaukee
County Circuit Court. The petitioner states that he raised two issues in his
motion—ineffective assistance of counsel and competency. Dkt. No. 1 at 2. The
court of appeals’ opinion and order in that case explains the petitioner’s
arguments and the reasons why the circuit court denied the motion. The
petitioner argued that his lawyer “did not afford him the best defense possible.”
State v. Rouse, No. 2014AP1634, Opinion and Order at 3 (Wis. Ct. App., May
22, 2015) (available at http://wscca.wicourts.gov/index.xsl, last visited
December 15, 2015). More specifically, the petitioner argued that he asked his
lawyer to move the court “to have his case dropped to a lesser included charge,
and she did not do that.” Id. The petitioner further argued that his lawyer did
not effectively argue that his mental health condition and history contributed
to his state of mind at the time of the offense. Id. at 3-4.
The circuit court denied the motion without a hearing, concluding that
the petitioner failed to identify any specific defense that his counsel failed to
provide him. Id. Further, the circuit court explained that the petitioner’s lawyer
had informed the circuit court that the petitioner did not want to challenge the
doctor’s report, did not want to seek appointment of another doctor, and that
wanted to withdraw his NGI plea. Id. The petitioner confirmed for the circuit
court that he did not want to challenge the finding that he was competent to
stand trial and that he wanted to withdraw his NGI plea. Id. The circuit court
found that the petitioner was competent to stand trial and ordered his NGI plea
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withdrawn. After plea negotiations, the petitioner pleaded guilty to first-degree
reckless homicide and the state agreed to dismiss the “while armed” penalty
enhancer and the charge of felon in possession of a firearm. The circuit court
accepted the petitioner’s plea and sentenced him to 25 years of initial
confinement followed by 15 years of extended supervision.
The petitioner appealed the circuit court’s order to the Wisconsin Court
of Appeals. The court of appeals explained that, under State v. Allen, 2004 WI
106 ¶12, 274 Wis. 2d 568, 682 N.W.2d 433, a circuit court may deny a
postconviction motion without a hearing if the motion fails to raise questions of
fact or presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief. After summarizing the
essence of the petitioner’s motion as consisting of three sentences, the court of
appeals concluded that the petitioner’s “conclusory allegations fall woefully
short of establishing the necessary ‘who, what, where, when, why, and how’
details required in a postconviction motion.” State v. Rouse, No. 2014AP1634,
Opinion and Order at 5 (citing State v. Balliette, 2011 WI 79, ¶59, 336 Wis. 2d
358, 805 N.W.2d 334). The court of appeals further rejected arguments
regarding his competency, which the petitioner raised for the first time in his
appellate brief. Id.; State v. Rouse, No. 2014AP1634, Resp. Br. at 8 (Wis. Ct.
App. Feb 10, 2015). The Wisconsin Supreme Court denied the petitioner’s
petition for review. The petitioner then filed his §2254 petition in this court.

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II.

ANALYSIS
The court finds that in his federal petition, the petitioner has pleaded

claims for relief—ineffective assistance of counsel and incompetence to stand
trial—that are generally cognizable on federal habeas review. Next, the court
must determine whether the petitioner’s individual claims can proceed. First,
the court must examine whether the petitioner has “exhausted” all of his statecourt remedies as to each claim contained in the petition. A federal district
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 Cir. 1991). So, before a habeas petitioner’s
claims can be reviewed on their merits, the petitioner first must have appealed
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).
In this case, the petitioner clearly presented his ineffective assistance of
counsel claim to the circuit court in his §974.06 motion, and he pursued that
claim to the Wisconsin Supreme Court. The court of appeals, however, did not
address the merits of that claim because his §974.06 motion did not contain
sufficiently detailed allegations. By contrast, the court of appeals concluded
that the petitioner argued for the first time on appeal that circuit court erred by
finding him competent to stand trial. The court of appeals refused to consider
that argument for a different procedural reason—the court of appeals does not
review allegations that were not “contained in the four corners of a
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postconviction motion . . . .” State v. Rouse, No. 2014AP1634, Opinion and
Order, at 5. The result of the court of appeals’ decision is that both of the
petitioner’s claims appear to be “procedurally defaulted” for purposes of federal
habeas review.
A petitioner can “procedurally default” his claim—and lose his right to
federal habeas review—in two ways, both of which are relevant here: (1) if he
fails to exhaust his state court remedies, Chambers v. McCaughtry, 264 F.3d
732, 737 (7th Cir. 2001); 28 U.S.C. § 2254(b)(1)(A), or (2) if the last state court
that rendered judgment “‘clearly and expressly’ states that its judgment rests
on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038,
1043 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S. Ct.
2633, 2638 (1985)). When considering whether a state court decision rests on a
state law procedural default, federal courts must look to “the last explained
state court judgment.” Ylst v. Nunnemaker, 501 U.S. 797, 805, 111 S. Ct.
2590, 2595 (1991). “The test to avoid procedural default in federal court is
whether the state court’s decision rests on the substantive claims primarily,
that is, whether there is no procedural ruling that is independent” of the
court’s decision on the merits of the claims. Holmes v. Hardy, 608 F.3d 963,
967 (7th Cir. 2010).
“When a state-law default prevents the state court from reaching the
merits of a federal claim, that claim can ordinarily not be reviewed in federal
court.” Ylst, 501 U.S. at 801, 111 S. Ct. at 2593. In other words, a federal
habeas court cannot review a petitioner’s claims when the state court has
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declined to review them on the merits “pursuant to an independent and
adequate state procedural rule,” unless the petitioner can demonstrate either
cause for the default and resulting prejudice, or that the failure to consider the
claims will result in a fundamental miscarriage of justice. Coleman v.
Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546 (1991). An independent state
ground exists “when the court actually relied on the procedural bar as an
independent basis for its disposition of the case.” Thompkins v. Pfister, 698
F.3d 976, 986 (7th Cir. 2012) (citing Kaczmarek v. Rednour, 627 F.3d 586, 592
(7th Cir. 2010)). A state law ground is adequate “when it is a firmly established
and regularly followed state practice at the time it is applied.” Id.
Discretionary procedural rules can serve as an adequate ground to bar
federal habeas review.” Beard v. Kindler, 558 U.S. 53, 60, 130 S. Ct. 612, 618
(2009). Before a Wisconsin court will grant an evidentiary hearing to a
defendant on a §974.06 motion, the defendant must allege “sufficient material
facts- e.g., who, what, where, when, why, and how-that, if true, would entitle
him to the relief he seeks.” Allen, 274 Wis. 2d at 573, 682 N.W.2d at 436. If the
defendant does not give the trial court that information, the trial court has the
discretion to deny the motion without a hearing, which is what happened in
this case.
The Wisconsin Court of Appeals issued the last state court decision that
evaluated the petitioner’s §974.06 motion. It is clear that that decision rests on
procedural, rather than substantive, grounds. First, expressly relying on State
v. Allen, 2004 WI 106 ¶12, 274 Wis. 2d 568, 682 N.W.2d 433, and State v.
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Balliette, 2011 WI 79, ¶59, 336 Wis. 2d 358, 805 N.W.2d 334, the Wisconsin
Court of Appeals affirmed the circuit court’s denial of the petitioner’s §974.06
motion without a hearing, because he did not follow a Wisconsin state
procedural rule that required him to give the circuit court adequate information
about his ineffective assistance claims. Second, that court denied the
petitioner’s attempt “to augment his allegations and make new arguments on
appeal,” which were directed at his competency to stand trial, because he did
not raise them in his §974.06 motion. Opinion and Order at 5, Rouse, No.
2014AP1634; see also Resp. Br. at 8, Rouse, No. 2014AP1634.
The court of appeals based its decision solely on procedural grounds—
the petitioner’s failure to present all of his allegations and arguments in his
§974.06 motion and his failure to satisfy the Allen rule. Thus, that court’s
procedural decision is independent of the merits of the petitioner’s claims.
Holmes, 608 F.3d at 967. The remaining question is whether the rules it relied
on are “firmly established and regularly followed. The Seventh Circuit
previously has held that “[t]he Allen rule is a well-rooted procedural
requirement in Wisconsin and is therefore adequate.” Id. (citing State v.
Negrete, 343 Wis. 2d 1, 819 N.W.2d 749, 755 (2012); Balliette, 336 Wis. 2d
358, 805 N.W.2d 334, 339 (2011); State v. Love, 284 Wis. 2d 111, 700 N.W.2d
62, 68–69 (2005); State v. McDougle, 347 Wis. 2d 302, 830 N.W.2d 243, 247–
48 (Ct. App. 2013)). Therefore, the court of appeals relied on an adequate and
independent state ground and the petitioner’s ineffective assistance claim is
procedurally defaulted.
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Federal courts can review a procedurally defaulted claim raised in a
habeas petition only if the petitioner is able to demonstrate “cause and
prejudice” for his default or show that the court’s failure to examine a claim
will result in a fundamental miscarriage of justice, id. (citing Coleman, 501
U.S. at 750). To establish cause, the petitioner must show “that some type of
external impediment prevented [him] from presenting his federal claim to the
state courts.” Id. (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)). In
order to establish prejudice, the petitioner must show that “the violation of [his]
federal rights ‘worked to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.’ “ Lewis v Stearns, 390 F.3d
1019, 1026 (7th Cir. 2004) (citing United States v. Frady, 456 U.S. 152, 170
(1982) (emphasis in original)). The miscarriage of justice exception requires
that the petitioner “show that he is actually innocent of the offense for which
he was convicted, i.e., that no reasonable juror would have found him guilty of
the crime but for the error(s) that he attributed to the state court.” Lewis, 390
F.3d at 1026 (citing Schlup v. Delo, 513 U.S. 298, 327–29 (1995)).
Here, neither Rouse’s petition nor the Wisconsin Court of Appeals’
decision indicate that any external impediment prevented him from explaining
his ineffective assistance claim in more detail in his §974.06 motion, or raising
his competency argument in his §974.06 motion. Similarly, his petition does
not suggest that a fundamental miscarriage of justice will result if the court
does not consider these claims. Procedural default, however, is an affirmative
defense for the respondent to raise; there is no requirement that a petitioner
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show cause and prejudice or actual innocence in his petition. A court may raise
an affirmative defense before requiring the respondent to answer if “it is so
plain from the language of the complaint and other documents in the court's
files that it renders the suit frivolous.” See, e.g., Gleash v. Yuswak, 308 F.3d
758, 760–61 (7th Cir. 2002) (“Under the circumstances there was no point to
serving the defendants with process, forcing them to engage counsel, and then
waiting for the inevitable motion to dismiss.”). The court is raising the defensne
in this case, but will give petitioner an opportunity to overcome his default by
showing: (1) whether there is any cause to explain his failure to properly
present his defaulted claims to the Wisconsin state courts, as well as (2) what
prejudice he will suffer as the result of his failure to raise these claims
properly; or (3) whether a failure to review his claims will constitute a
fundamental miscarriage of justice because he is actually innocent of the
charge to which he pled guilty. If petitioner fails to overcome his procedural
default, the court will dismiss the petition.
III.

CONCLUSION
For the reasons explained above, the court ORDERS the petitioner to file

a document showing cause why his petition should not be dismissed as barred
by the doctrine of procedural default. The petitioner must file that document on
or before FEBRUARY 5, 2016. If the petitioner cannot establish cause and

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prejudice, or if he does not file the document by the deadline of February 5,
2016, the court will dismiss the petition.
Dated in Milwaukee, Wisconsin this 18th day of December, 2015.

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