Harris v. State of Wisconsin

Filing 32

ORDER signed by Judge Lynn Adelman on 5/8/18. IT IS ORDERED that respondent's motion to dismiss 22 is GRANTED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. IT IS FURTHER ORDERED that Harris's motion for an order correcting his sentence 25 is DENIED as moot. (cc: all counsel, plaintiff) (jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EMMIT R. HARRIS,
Petitioner,
v.

Case No. 17-C-0608

PAUL S. KEMPER, Warden,
Racine Correctional Institution,
Respondent.

DECISION AND ORDER
On March 11, 2002, Emmit Harris entered an Alford plea in state court to one
count of first-degree sexual assault of a child and pleaded no contest to a second count
of first-degree sexual assault of a child and one count of first-degree recklessly
endangering safety. After Harris was convicted and sentenced that June, he filed a
notice of intent to pursue post-conviction relief, but he never filed a post-conviction
motion or notice of appeal. Years later, on December 6, 2016, Harris filed a petition for
a writ of habeas corpus in state court, which the state court promptly dismissed. Then,
on January 13, 2017, Harris filed a motion in state court for relief pending appeal—
although, as the state court noted, there was no appeal pending in his case—which the
state court denied. Finally, Harris filed this petition for a writ of habeas corpus, pursuant
to 28 U.S.C. § 2254, arguing that he is in custody in violation of the U.S. Constitution.
Respondent moves to dismiss Harris’s petition arguing that the procedural
default doctrine bars federal review of his claims because he did not fairly present them
in state court and cannot do so now. See Thomas v. Williams, 822 F.3d 378, 384 (7th
Cir. 2016) (quoting Ward v. Jenkins, 613 F.3d 692, 696 (7th Cir. 2010)). Harris does not

dispute that his claims are procedurally defaulted, so he can only proceed if his
procedural default can be excused.
Harris’s procedural default may be excused if he can show “cause for the default
and actual prejudice.” Id. at 386 (quoting Coleman v. Thompson, 501 U.S. 722, 750
(1991)). As cause for his default, Harris asserts that his court-appointed attorney on
direct appeal from his conviction neglected his case and let important filing deadlines
lapse. Abandonment by counsel may constitute cause to excuse a procedural default,
but Harris has not shown that he was “left without any functioning attorney of record,”
much less that he was “[g]iven no reason to suspect that he lacked counsel able and
willing to represent him,” as required to establish abandonment in this context. See
Maples v. Thomas, 565 U.S. 266, 288–89 (2012).
Short of abandonment, constitutionally ineffective assistance of counsel on direct
appeal from a state criminal conviction may provide cause to excuse a procedural
default. But “a claim of ineffective assistance” must “be presented to the state courts as
an independent claim before it may be used to establish cause.” Murray v. Carrier, 477
U.S. 478, 489 (1986). Harris did not fairly present a claim of ineffective assistance of
appellate counsel to the state courts, so that claim is “itself . . . procedurally defaulted.”
Edwards v. Carpenter, 529 U.S. 446, 453 (2000). As Harris has not shown “that that
procedural default may . . . be excused,” he cannot assert the ineffective assistance of
his appellate attorney as cause for the procedural default of his other claims. See id.
Apart from his attorney’s neglect, Harris cites his history of mental illness and
intellectual disability as cause for his failure to properly present and exhaust his claims
in state court. “The Supreme Court,” though, “has defined cause sufficient to excuse

2

procedural default as ‘some objective factor external to the defense’ which precludes
petitioner’s ability to pursue his claim in state court.” Harris v. McAdory, 334 F.3d 665,
668 (7th Cir. 2003) (emphasis added) (quoting Murray, 477 U.S. at 488). Mental illness
and disability—like “youth, lack of education, and illiteracy”—are normally not
considered “factors . . . ‘external’ to [the] defense.” Id. at 669. Harris does not explain,
and I cannot discern, why this general rule would not apply here.
Harris’s procedural default may yet be excused if he can show “that failure to
consider [his] claims will result in a fundamental miscarriage of justice.” Thomas, 822
F.3d at 386 (quoting Coleman, 501 U.S. at 750). To establish a fundamental
miscarriage of justice, a petitioner must show that “a constitutional violation has
probably resulted in the conviction of one who is actually innocent.” Id. (quoting Schlup
v. Delo, 513 U.S. 298, 327 (1995)). Harris says that, although he is innocent, he
confessed to his crimes because a detective violated his constitutional rights while
interrogating him—e.g., by ignoring his request for an attorney. He also cites a recent
clinical evaluation of his intellectual disability as “new evidence” of his vulnerability to
coercion. Yet, Harris was convicted based on his pleas, not his confession, and he does
not explain how the supposed constitutional violations that he describes “resulted in” his
conviction. Further, Harris’s arguments and evidence that he was vulnerable and
succumbed to unlawful coercion do little, if anything, to suggest that his resulting
confession was false, much less that he is actually innocent. Thus, he does not show
that failure to consider his claims will result in a fundamental miscarriage of justice.
THEREFORE, IT IS ORDERED that respondent’s motion to dismiss (Docket No.
22) is GRANTED. The Clerk of Court shall enter final judgment accordingly.

3

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Harris’s motion for an order correcting his
sentence (Docket No. 25) is DENIED as moot.
Dated at Milwaukee, Wisconsin, this 8th day of May, 2018.

_s/Lynn Adelman_________
LYNN ADELMAN
District Judge

4