Ortiz-Mondragon v. Symdon

Filing 3

ORDER signed by Judge Pamela Pepper on 6/7/2016 SCREENING 1 Petition for Writ of Habeas Corpus and ORDERING Respondent to answer or otherwise respond. The court ORDERS that the Petitioner may proceed on his claim that his trial counsel violated his Sixth Amendment right to counsel in failing to fully advise him to the immigration consequences of his guilty plea. Please refer to the order for briefing information. (cc: all counsel)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
FERNANDO ORTIZ-MONDRAGON,

Case No. 15-cv-1412-pp

Petitioner,
v.
DENISE SYMDON,
Respondent.

ORDER SCREENING §2254 HABEAS CORPUS PETITION, AND ORDERING
THE RESPONDENT TO ANSWER OR OTHERWISE RESPOND

Fernando Ortiz-Mondragon, a native and citizen of Mexico who is
represented by counsel, filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. §2254. Dkt. No. 1. He has paid the $5.00 filing fee.
I.

BACKGROUND
In the Circuit Court of Brown County, Wisconsin, the petitioner was

charged with (1) substantial battery, domestic abuse; (2) criminal damage to
property, domestic abuse; (3) disorderly conduct, domestic abuse; (4) false
imprisonment, domestic abuse; and (5) felony intimidation of a victim,
domestic abuse. Dkt. No. 1-2, at 1. The petitioner was represented by counsel
in the trial court, and he entered a no-contest plea to the charges of
substantial battery, criminal damage to property, and disorderly conduct; the
remaining counts were dismissed. Dkt. No. 1-1 at 2.

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Before the plea hearing and sentencing, the petitioner signed a plea
questionnaire in which he confirmed that he understood that his plea “could
result in deportation, the exclusion of admission to this county, or the denial of
naturalization under federal law.” Dkt. No. 1-2 at 2. At the sentencing hearing,
the trial court withheld sentencing and ordered the petitioner to serve a threeyear term of probation. Id. As a condition of probation, the court ordered the
petitioner to serve four months in jail. Id. After the petitioner served his jail
time, he was taken into custody by United States Immigration and Customs
Enforcement (“ICE”), and the government commenced removal proceedings
against him. The petitioner agreed to voluntarily leave the United States in
order to avoid being deported. Id.
The petitioner then filed a post-conviction motion in the Brown County
Circuit Court, seeking to withdraw his no-contest plea. Wisconsin v. OrtizMondragen, 2012CF001101, available at https://wcca/wicourts.gov; Dkt. No.
1-3 at 1-2. The petitioner argued that his trial counsel rendered ineffective
assistance by failing to advise him of the possible immigration consequences of
his plea. Id. at 1-2. The trial court denied that motion. Id. at 3. The petitioner
appealed the trial court’s decision to the Wisconsin Court of Appeals and the
Wisconsin Supreme Court, both of which affirmed the trial court’s order. Id. at
9; State v. Ortiz-Mondragon, 2013AP002435, available at
https://wscca.wicourts.gov. The Wisconsin Supreme Court granted review, and
affirmed the Court of Appeals’ decision. Dkt. No. 1-4.

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The petitioner subsequently filed this federal petition. The petition sets
forth one ground for habeas relief: the petitioner’s claim that he was denied his
Sixth Amendment right to effective assistance of counsel because his trial
counsel “failed to provide him with specific advice about the adverse
immigration consequences that would result from his plea to substantial
battery, domestic abuse.” Dkt. No. 1 at 14. The petitioner contends that the
court should grant his petition, enter an order vacating his state court
convictions and remand the case to the state court for a hearing on whether
the petitioner’s trial counsel rendered ineffective assistance and caused
prejudice to the petitioner. Id. at 12.
II.

THE PETITIONER MAY PROCEED ON HIS CLAIM THAT HIS TRIAL
COUNSEL RENDERED CONSTITUTIONALLY INEFFECTIVE
ASSISTANCE.
The court will now proceed to review, or “screen” the petition. Rule 4 of

the Rules Governing §2254 Proceedings says:
If it plainly appears from the face of 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 . . . .
At this stage, the court reviews the petition and its exhibits to determine if the
petitioner has set forth claims arising under the Constitution or federal law
that are cognizable on habeas review, exhausted in the state court system, and
not procedurally defaulted.

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The petitioner claims that his no-contest plea in state court resulted from
his trial counsel’s failure, under the Sixth Amendment of the Constitution, to
provide him with effective assistance of counsel. Specifically, he alleges that his
trial counsel did not specifically advise him that his conviction for substantial
battery, domestic abuse, could be considered a crime of moral turpitude, which
would render the petitioner removable from the United States under 8 U.S.C.
§1227(a)(2)(A)(i). The petitioner contends that the plea questionnaire he signed
was not sufficient to establish that he understood the immigration
consequences of his plea, notwithstanding the statements to which he agreed
in that document. The court finds that the petitioner has stated Sixth
Amendment claim that is cognizable on habeas review.
Next, in order to decide whether the petitioner’s habeas case can move
forward, the court must determine whether it appears, on the face of the
petition, that the petitioner exhausted his state remedies on this claim. Section
2254 states, “An application for a writ of habeas corpus on behalf of a person
in custody 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 Cir.
1991). A prisoner exhausts a constitutional claim when he has presented it to
the highest state court for a ruling on the merits. O’Sullivan v. Boerckel, 526
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U.S. 838, 845, 119 S. Ct. 1728, 1733 (1999); Arrieta v. Battaglia, 461 F.3d 861,
863 (7th Cir. 2006). Once the state’s highest court has had a full and fair
opportunity to evaluate the merits of the claim, a prisoner is not required to
present it again to the state courts. Humphrey v. Cady, 405 U.S. 504, 516 n.
18, 92 S. Ct. 1048, 1055 n. 16 (1972). From the face of the petition and the
attachments to the petition, it appears that the petitioner has satisfied this
requirement; at this preliminary stage, it appears that he presented his claims
to each level of the Wisconsin state courts and was denied relief. The court
notes, however, that at this stage in the case, the respondent has not had an
opportunity to weigh in on the exhaustion question; nothing in this order
prevents the respondent from arguing that the petitioner has not exhausted his
claims, or from filing pleadings based on that argument.
Finally, the court considers whether the petitioner procedurally defaulted
his claim. Even if a petitioner has exhausted review of his constitutional claim
in the state courts, it is possible that a federal habeas court can be foreclosed
from reviewing the claim on the merits because of a “procedural default.” A
criminal defendant “procedurally defaults” a claim—and loses the right to
federal habeas review—if the last state court that issued 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)). There can be
several kinds of state procedural bars, including, but not limited to, failing “to
raise a claim of error at the time or in the place that state law requires.”
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Trevino v. Thaler, --- U.S. ---, 133 S. Ct. 1911, 1917 (2013). At this point in the
case, the court can discern no procedural default from the face of the petition.
Therefore the court will allow the petitioner’s habeas case to proceed.
III.

CONCLUSION
The court ORDERS that the petitioner may proceed on his claim that his

trial counsel violated his Sixth Amendment right to counsel in failing to fully
advise him to the immigration consequences of his guilty plea.
The court ORDERS that within sixty 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
within forty-five (45) days of the date the respondent files the motion. If the
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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 Denise Symdon,
Administrator of the Wisconsin Division of Community Corrections.
Dated in Milwaukee, Wisconsin this 7th day of June, 2016.

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