Toliver v. Symdon

Filing 14

ORDER signed by Judge J.P. Stadtmueller on 11/29/2017: DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; DENYING Certificate of Appealability; and DISMISSING CASE. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
STEPHEN TOLIVER,
Petitioner,

v.

Case No. 17-CV-625-JPS

DENISE SYMDON,
Respondent.

ORDER

Petitioner, Stephen Toliver (“Toliver”), has filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his state
conviction and sentence were imposed in violation of the Constitution.
(Docket #1). The parties have fully briefed their respective positions on
Toliver’s asserted grounds for relief. For the reasons stated below, the
Court finds that Toliver’s petition is without merit and must be denied.
1.

STANDARD OF REVIEW
State criminal convictions are generally considered final. Review

may be had in federal court only on limited grounds. To obtain habeas
relief from a state conviction, 28 U.S.C. § 2254(d)(1) (as amended by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”)) requires the
petitioner to show that the state court’s decision on the merits of his
constitutional claim was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the United
States Supreme Court. 28 U.S.C. § 2254(d)(1); Brown v. Payton, 544 U.S. 133,
141 (2005). The burden of proof rests with the petitioner. Cullen v.
Pinholster, 563 U.S. 170, 181 (2011). The relevant decision for this Court to

review is that of the last state court to rule on the merits of the petitioner’s
claim. Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006).
A state-court decision runs contrary to clearly established Supreme
Court precedent “if it applies a rule that contradicts the governing law set
forth in [those] cases, or if it confronts a set of facts that is materially
indistinguishable from a decision of [the Supreme] Court but reaches a
different result.” Brown, 544 U.S. at 141. Similarly, a state court
unreasonably applies clearly established Supreme Court precedent when
it applies that precedent to the facts in an objectively unreasonable
manner. Id.; Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013).
The AEDPA undoubtedly mandates a deferential standard of
review. The Supreme Court has “emphasized with rather unexpected
vigor” the strict limits imposed by Congress on the authority of federal
habeas courts to overturn state criminal convictions. Price v. Thurmer, 637
F.3d 831, 839 (7th Cir. 2011). It is not enough for the petitioner to prove the
state courts were wrong; he must also prove they acted unreasonably.
Harrington v. Richter, 562 U.S. 86, 101 (2005); Campbell v. Smith, 770 F.3d
540, 546 (7th Cir. 2014) (“An ‘unreasonable application of’ federal law
means ‘objectively unreasonable, not merely wrong; even ‘clear error’ will
not suffice.’”) (quoting White v. Woodall, 134 S. Ct. 1697, 1702 (2014)).
Indeed, the habeas petition must demonstrate that the state court
decision is “so erroneous that ‘there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with [the Supreme]
Court’s precedents.’” Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013)
(quoting Harrington, 562 U.S. at 102). The state court decisions must “be
given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002);
Hartjes v. Endicott, 456 F.3d 786, 792 (7th Cir. 2006). Further, when a state
Page 2 of 22

court applies general constitutional standards, it is afforded even more
latitude under the AEDPA in reaching decisions based on those standards.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); Yarborough v. Alvarado, 541
U.S. 652, 664 (2004) (“[E]valuating whether a rule application was
unreasonable requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching outcomes in case-bycase determinations.”).
As the Supreme Court has explained, “[i]f this standard is difficult
to meet, that is because it was meant to be.” Harrington, 562 U.S. at 102.
Indeed, Section 2254(d) stops just short of “imposing a complete bar on
federal-court relitigation of claims already rejected in state proceedings.”
See id. This is so because “habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a substitute for
ordinary error correction through appeal.” Id. at 102–103 (quoting Jackson
v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring)).
A federal court may also grant habeas relief on the alternative
ground that the state court’s adjudication of a constitutional claim was
based upon an unreasonable determination of the facts in light of the
evidence presented. 28 U.S.C. § 2254(d)(2). The underlying state court
findings of fact and credibility determinations against the petitioner are,
however, presumed correct. Newman v. Harrington, 726 F.3d 921, 928 (7th
Cir. 2013). The petitioner overcomes that presumption only if he proves by
clear and convincing evidence that those findings are wrong. Id. §
2254(e)(1); Campbell, 770 F.3d at 546. “A decision ‘involves an
unreasonable determination of the facts if it rests upon factfinding that
ignores the clear and convincing weight of the evidence.’” Bailey, 735 F.3d
at 949–50 (quoting Goudy v. Basinger, 604 F.3d 394, 399–400 (7th Cir. 2010)).
Page 3 of 22

“‘[A] state-court factual determination is not unreasonable merely because
the federal habeas court would have reached a different conclusion in the
first instance.’” Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (quoting Wood v.
Allen, 558 U.S. 290, 301 (2010)). If shown, however, an unreasonable
factual determination means that this Court must review the claim in
question de novo. Carlson v. Jess, 526 F.3d 1018, 1024 (7th Cir. 2008).
2.

BACKGROUND
Toliver’s case has a long and complicated procedural history,

involving several state postconviction motions and two prior grants of
habeas relief by federal courts. The issues presented for decision at this
time are relatively narrow, however, and so the Court will confine itself to
those facts necessary for disposition of this petition.
In 1991, the State of Wisconsin charged Toliver and his brother with
first-degree intentional homicide for causing the death of Tina Rogers. The
jury convicted Toliver. Toliver’s direct appeal and two collateral attacks
under Wis. Stat. § 974.06 were unsuccessful. However, in 1999, this Court
granted Toliver’s habeas petition on the ground that he was denied his
right to counsel during direct appeal. Wisconsin ex rel. Toliver v.
McCaughtry, 72 F. Supp. 2d 960, 979 (E.D. Wis. 1999). In response,
Wisconsin reinstated Toliver’s direct appeal rights.
Toliver’s new direct appeal alleged in part that his trial counsel was
ineffective. The state courts rejected Toliver’s arguments, as did this Court
when he filed another habeas petition. The Seventh Circuit, though,
remanded for an evidentiary hearing on the ineffective-assistance claim.
Toliver v. McCaughtry, 539 F.3d 766 (7th Cir. 2008). This Court granted the
petition after the hearing, and the Seventh Circuit affirmed on appeal.
Toliver v. Pollard, 688 F.3d 853, 862–63 (7th Cir. 2012).
Page 4 of 22

The State then elected to retry Toliver. In January 2013, Toliver and
the State reached a plea agreement for Toliver to plead guilty to one count
of felony murder, in violation of Wis. Stat. § 940.03, and one count of
hiding a corpse, in violation of Wis. Stat. § 940.11(2). The maximum
penalty for these charges, combined, was thirty-five years with mandatory
release after two-thirds of the sentence was served. See Wis. Stat. §
302.11(1).
If the court sentenced Toliver to the maximum term, he would have
been released in under two years. The parties based this conclusion on
Toliver’s having 7,917 days of sentence credit from his date of arrest on
May 24, 1991 until the date of sentencing on January 25, 2013. The court
sentenced Toliver to consecutive sentences of thirty years for the felony
murder and five years for hiding a corpse and awarded him 7,917 days of
credit.
The court also ordered 297 days of pretrial sentence credit from the
day of Toliver’s arrest on May 24, 1991 until his original sentencing on
March 16, 1992. The Wisconsin Department of Corrections (“DOC”)
informed the circuit court that it would apply the 297 days of credit to
Toliver’s sentence, but counting from September 5, 1992, rather than the
date of the original sentencing hearing on March 16 of that year. This was
because Toliver’s original sentence was consecutive to another sentence he
was already serving, and he did not start serving the instant term until
September 5, 1992.
On May 3, 2013, DOC again contacted the circuit court, this time to
inform it that hiding a corpse was not a crime when Toliver acted in 1991.
Such conduct was not criminalized until May 1992. A status conference
was held in the trial court on June 26, 2013, where defense counsel told the
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trial court that Toliver’s plea to felony murder and hiding a corpse should
be vacated in light of the information that hiding a corpse was not an
offense in 1991. Defense counsel told the court that Toliver wanted to
proceed to trial on the original charge of first-degree intentional homicide.
The State informed the court at this hearing that it was offering to Toliver
a plea where he would be mandatorily released in ten months.
The parties reconvened the next day, on June 27, 2013. Defense
counsel told the court that the parties agreed that the felony murder
conviction would not be vacated, that the hiding a corpse conviction
would be vacated, and that Toliver would plead guilty to first-degree
reckless endangerment under Wis. Stat. § 941.30(1). The hearing transcript
reads, in relevant part:
[DEFENSE COUNSEL:] Your Honor, I believe we
have a resolution of the matter. And if you wish, I’ll put
forth the status of what we learned since the plea and
sentencing that occurred earlier this year. That the Count 2
of the previous information, which charged the violation of
the hiding the corpse statute, that the official date of
enactment on that offense occurred probably about a month
to six weeks after the offense date in this. So by operation of
law, that Count 2 plea and sentencing becomes null and
void. In review of that, Mr. Williams and I have conferred.
And I conferred with Mr. Toliver the proposal. We have a
new information that’s filed today. He is prepared while the
information leaves Count 1 in there, the Count 1, plea and
sentencing has already taken place. The Court has imposed a
sentence on that.
THE COURT: On the felony murder that says the
same – that’s not being vacated?
[DEFENSE COUNSEL]: That’s correct. So it would be
necessary today to take a plea to Count 2, which is firstdegree reckless endangerment contrary to Section 941.30(1),
under the statutes of -- Wisconsin Statutes of 1991.
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(Docket #9-13 at 2–3). Counsel for the State concurred. Id. at 4.
The Court then confirmed Toliver’s agreement to reaffirm his guilty
plea to felony murder:
THE COURT: Okay. So you understand, sir, Count 1
is not being vacated. We’re vacating Count 2. And you’re
entering a plea apparently to the first-degree recklessly
endangering safety.
THE DEFENDANT: Yes.
Id. at 4–5.
The State agreed to recommend that Toliver be sentenced to five
years in prison for reckless endangerment, to run consecutive to his 30year sentence for felony murder. The parties agreed that the previous
sentence imposed for felony murder was consecutive to the reckless
endangerment count, but concurrent to any other sentence.
The parties further agreed Toliver was entitled to pretrial credit
from the date of his original sentence on March 16, 1992, to June 27, 2013—
a total of 7,793 days—and that the total sentencing credit with pretrial
incarceration was 8,070 days. This meant a mandatory release date in ten
months, during April 2014. These were defense counsel’s calculations, but
the State and the court concurred. The circuit court accepted Toliver’s
plea, and sentenced him to five years in prison on the reckless
endangerment charge, consecutive to his felony murder sentence. The
court awarded him 8,070 days of credit.
As noted, under this agreement, Toliver’s mandatory release date
would occur approximately ten months from the date of sentencing,
which would have been April 2014. Then, on August 29, 2013, DOC

Page 7 of 22

informed the circuit court that Toliver’s sentence began on September 5,
1992, not March 16, 1992, and that he was only entitled to 7,447 days of
sentencing credit. On September 11, 2013, the circuit court issued an order
stating that DOC was required by statute to credit Toliver with
confinement from March 16, 1992. DOC responded that it could not credit
Toliver for time served before September 5, 1992. On December 20, 2013,
the circuit court issued another order, stating that Toliver’s sentencing
credit began on September 5, 1992. The court reduced Toliver’s pretrial
credit from 297 days to 67 days because he was not entitled to credit for
time spent in custody on a different charge, citing State v. Gavigan, 362
N.W.2d 162, 165 (Wis. Ct. App. 1984). DOC then informed Toliver that his
mandatory release date was March 18, 2016.
In June 2014, Toliver moved to withdraw his pleas pursuant to Wis.
Stat. § 809.30 on three different grounds. They were all based on his
contention that he pled guilty believing his mandatory release date was in
April 2014. He asserted that (1) he did not knowingly, voluntarily, and
intelligently enter his pleas, (2) his counsel was ineffective, and (3) the
circuit court’s plea colloquy was defective. In response, the State asked the
circuit court to modify Toliver’s sentence so he would be released
immediately. Toliver opposed sentence modification, insisting instead that
he be allowed to withdraw his pleas.
The trial court held a hearing on Toliver’s motion on October 31,
2014. At this hearing, Toliver testified that he wanted to withdraw his
guilty pleas and proceed to trial in June 2013 when he was informed that
hiding a corpse was not an offense in 1991 and that he was not entitled to
the sentence credit ordered by the trial court. He stated, “[s]o when I came
down in June, my mindset was on going to trial.” (Docket #9-14 at 28).
Page 8 of 22

However, Toliver testified that his trial counsel told him before he pled
guilty in June 2013 that if he accepted the State’s plea offer, he would be
released from prison in April 2014 based on the mandatory release date
calculation. Id. at 26. Toliver said that “[a]fter that, I said I’ll take the deal.”
Id. at 29.
When asked whether he considered the sentencing credit to which
he thought he was entitled when he entered his guilty plea, Toliver
testified “[t]hat was the only reason I took it.” Id. at 31. Toliver also
testified that he would not have pled guilty if he knew he was not entitled
to enough sentencing credit to allow him to be released in April 2014,
saying “[n]o, I wouldn’t have accepted it because I wasn’t going to accept
it on June 25. I demanded a trial.” Id.
The trial court denied Toliver’s motion to withdraw his plea in a
written decision issued December 1, 2014. The trial court concluded that
Toliver did not demonstrate that his anticipated April 2014 release date
was crucial to his decision to plead guilty. However, the trial court
modified its June 2013 sentence to provide Toliver’s immediate release
from custody. Toliver was released from prison on December 3, 2014, and
is currently serving a 10-year term of extended supervision.
Toliver appealed, raising the same claims from his plea withdrawal
motion. In addition, he asserted that his pleas were premised on a legal
impossibility and claimed that the circuit court should have vacated his
felony murder conviction when it vacated the hiding the corpse
conviction. The Wisconsin Court of Appeals rejected these claims in a
decision dated December 15, 2015. (Docket #9-5). The Wisconsin Supreme
Court later denied Toliver’s petition for review.

Page 9 of 22

Toliver filed this habeas petition on May 2, 2017. (Docket #1). He
asserts three grounds for relief: (1) he did not knowingly, voluntarily, and
intelligently enter his pleas because he thought that he would be released
in April 2014; (2) the trial court violated due process by not allowing him
to withdraw his guilty plea to felony murder along with vacating his
hiding a corpse conviction; and (3) trial counsel was ineffective for
miscalculating his mandatory release date. Id. at 6–8.
3.

ANALYSIS
3.1

Validity of Toliver’s Plea

Toliver’s first claim is that the Wisconsin Court of Appeals erred in
rejecting his argument concerning the voluntariness of his plea.1 A guilty

Respondent’s first challenge to this ground is that because the state court
called Toliver’s argument “conclusory,” it relied on an adequate and
independent state ground for decision that is not reviewable in this Court.
(Docket #10 at 9–11). “When a state court resolves a federal claim by relying on a
state law ground that is both independent of the federal question and adequate
to support the judgment, federal habeas review of the claim is foreclosed.”
Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir. 2010) (citations omitted). The
problem with this assertion is that it is simply not supported by the appellate
court’s opinion. True enough, the court thought Toliver’s argument was
“nothing more than conclusory statements,” (Docket #9-5 at 9), but this was a
comment upon the weight of the argument. The court did not actually enforce
any procedural rule against consideration of underdeveloped or unsupported
arguments. See Harris v. Reed, 489 U.S. 255, 261 (1989) (“‘[T]he state court must
actually have relied on the procedural bar as an independent basis for its
disposition of the case.’”) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327
(1985)).
Indeed, this is made clearer inasmuch as the Court of Appeals did enforce
such a rule against Toliver’s argument that his plea agreements were premised
on a legal impossibility. Id. at 9 n.2 (citing M.C.I., Inv. v. Elbin, 430 N.W.2d 366,
369 (Wis. Ct. App. 1988)). But the “legal impossibility” point was just one piece
of the overall argument, and the state court’s procedural disposal of it does not
rob this Court of the ability to review the decision on the overarching ground for
relief.
1

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plea must be knowing, voluntary, and intelligent. Parke v. Raley, 506 U.S.
20, 29 (1992). Whether a plea was entered knowingly, intelligently, and
voluntarily is determined from “all of the relevant circumstances
surrounding it.” Brady v. United States, 397 U.S. 742, 749 (1970). Guilty
pleas “are accorded a great measure of finality” because they “are
important components of this country’s criminal justice system.”
Blackledge v. Allison, 431 U.S. 63, 71 (1977). As a result, the defendant bears
the burden of proving that the plea he entered was invalid. Marx v. United
States, 930 F.2d 1246, 1250 (7th Cir. 1991).
To enter a valid plea, a defendant must, among other things, have
full awareness of the plea’s “direct consequences,” Brady, 397 U.S. at 755,
which are characterized as its “immediate[] and automatic consequences,”
United States v. Jordan, 870 F.2d 1310, 1317 (7th Cir. 1989). A defendant
does not need to be informed of or understand any collateral
consequences of a plea to validly enter it. Virsnieks v. Smith, 521 F.3d 707,
715 (7th Cir. 2008).

Respondent also argues in her reply that Toliver has waived any
argument about the voluntariness of his plea because his entire treatment of this
ground in his brief consists of a single footnote to his ineffective-assistance
argument. Toliver contends that “[his] claim that his plea was not voluntary is
intertwined with his claim that his counsel was ineffective.” (Docket #12 at 13
n.1). Respondent says that such paltry attention to the claim waives it. (Docket
#13 at 1–2). The Court is inclined to agree; a single-sentence footnote, bereft of
explanation or citation to authority, is not the way to present arguments to the
Court for decision. Harmon v. Gordon, 712 F.3d 1044, 1053 (7th Cir. 2013); Duncan
v. State of Wis. Dep’t of Health & Family Servs., 166 F.3d 930, 934 (7th Cir. 1999).
Indeed, considering all the filings in this case together, Toliver has now offered
only five sentences, and no citations to law, in support of this ground. See
(Docket #1 at 6–7); (Docket #12 at 13 n.1). Nevertheless, in the interest of
completeness, and because Toliver’s claim is undoubtedly without merit, the
Court will address it.

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Toliver’s expectation as to his release date does not undermine the
validity of his plea. For purposes of this claim, this is true whether one
accepts at face value—as the Court of Appeals did not—that Toliver
would not have pled guilty had he known of the release date
miscalculation. A mistake as to a release date or sentence credit is, put
simply, a collateral matter not central to the plea itself.
To be sure, “[a]lthough the Supreme Court has not defined the
‘direct consequences’ of a guilty plea,” it must at a minimum include
notification of the “maximum sentence for which a defendant is eligible.”
See Dalton v. Battaglia, 402 F.3d 729, 733 (7th Cir. 2005); Fed. R. Crim. P.
11(b)(H)–(M). Indeed, there can be “no consequence of a defendant’s
guilty plea more direct, immediate, and automatic than the maximum
amount of time she may serve as a result of her plea.” Dalton, 402 F.3d at
733; Trueblood v. Davis, 301 F.3d 784, 786 (7th Cir. 2002).
The story is different for a defendant’s actual expectations
regarding the sentence he will receive or the time he will actually serve. In
that case, “[a] defendant’s miscalculation—even a gross miscalculation—
anent the likely length of his sentence does not render a guilty plea
unknowing, involuntary, or unintelligent in any legally cognizable sense.”
United States v. Torres-Rosa, 209 F.3d 4, 9 (1st Cir. 2000). Incorrect estimates
of sentences do not provide a reason to withdraw a plea. United States v.
Scott, 929 F.2d 313, 315 (7th Cir. 1991). Put differently, “[d]ue process does
not require the government or the District Court to predict a defendant’s
sentence before a plea agreement is accepted.” Id.; see also United States v.
Alvarez-Quiroga, 901 F.2d 1433, 1438–39 (7th Cir. 1990) (“The court clearly
informed the defendant what his sentence could be, from 10 years to life,
and so did his counsel,” and so it was unavailing that he later “tried to
Page 12 of 22

convert some expressed hopes for a sentence less than the minimum into a
failure by the trial court to fully advise him of the sentence possibilities.”);
United States v. Smith, 440 F.2d 521, 530 (7th Cir. 1971) (“An erroneous
appraisal” of factors such as “the chance of probation or parole” would
touch upon “the wisdom of the plea, but does not make it involuntary.”).
Though Wisconsin decisions are not controlling here, State v. Yates,
619 N.W.2d 132 (Wis. Ct. App. 2000), provides a good analogy. There, the
Wisconsin Court of Appeals found that a defendant’s presumptive
mandatory release date was not a direct consequence of his plea. Yates,
619 N.W.2d at 135. The court reasoned that the actual date of release could
be affected by the defendant’s own actions, including whether he
cooperated in any required treatment or counseling. Id. at 135–36. The
release date might also be affected by the parole commission, which
enjoys broad discretion to deny an inmate release if it determines that his
rehabilitation has fallen short or he remains a threat to the public. Id. For
these reasons, whether the defendant would actually be released on the
presumptive date was, at the time of his plea, “purely speculative,”
“dependent on factors other than the plea itself,” and therefore “[did] not
automatically flow from the plea.” Id. at 136. Therefore, the presumptive
release date could not be characterized as a direct consequence of his plea
that could support a withdrawal. Id.
Like Yates, here Toliver’s sentence credit, admittedly mistakenly
calculated, was not a direct consequence of his plea because it did not
directly, immediately, and automatically result therefrom. See Dalton, 402
F.3d at 733. The actual amount of credit was subject to review by the DOC
when it admitted Toliver at the prison and calculated his release date. See
Wis. Admin. Code § DOC 302.21. If Toliver later thought the amount was
Page 13 of 22

wrong, he was entitled to seek additional credit. See Wis. Stat. § 973.155(5).
Further, calculating sentence credit in 2013 for a prisoner confined since
1991 on multiple sentences is not necessarily a straightforward matter.
Because the amount of credit that Toliver was due was open to revision, it
was not a direct consequence of his plea. See Yates, 842 619 N.W.2d at 136
(agency discretion over a particular consequence of a plea suggests it is
collateral).
Moreover, the calculation was concurred in by all parties and the
court, as the transcript of the June 27, 2013 hearing shows. See (Docket #913 at 8–9). His mandatory release date in April 2014 was not, as Toliver
might have believed, a commitment made to him; it was simply the
parties’ (erroneous) expectation. See Brady, 397 U.S. at 755 (direct
consequences include “the actual value of any commitments made to him
by the court, prosecutor, or his own counsel”). As a result, this Court
cannot say that the Wisconsin Court of Appeals acted unreasonably in
rejecting this claim.
3.2

Vacating the Pleas

Toliver’s next habeas claim is that he was denied due process when
he was not allowed to withdraw his guilty plea to the felony murder
charge at the same time his hiding a corpse conviction was vacated. The
parties sometimes state this claim a little differently, contending that due
process required both convictions to be vacated at once. Either way, the
claim lacks merit.
At the outset, the Court must dispose of Respondent’s contention
that the claim is procedurally defaulted. (Docket #10 at 18–20). This Court
cannot consider Toliver’s habeas claim unless it has first been “fully and
fairly presented. . .to the state appellate courts,” thereby giving the courts
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a “meaningful opportunity to consider the substance of the claim[] that he
later presents in his federal challenge.” Bintz v. Bertrand, 403 F.3d 859, 863
(7th Cir. 2005); 28 U.S.C. § 2254(b)(1)(A). Fair presentment requires that
the petitioner apprise the state courts of the constitutional nature of the
claim, but it “does not require hypertechnical congruence between the
claims made in the federal and state courts; it merely requires that the
factual and legal substance remain the same.” Anderson v. Benik, 471 F.3d
811, 815 (7th Cir. 2006) (citation omitted). A petitioner fairly presents a
federal claim if he frames it “in terms so particular as to call to mind a
specific constitutional right.” Id. at 815.
Toliver argued to the Wisconsin Court of Appeals that he should be
allowed to withdraw his guilty plea as to felony murder because the trial
court did not have subject-matter jurisdiction to impose a sentence as to
the other, non-existent offense, hiding a corpse. According to him, this
meant that his plea agreement as a whole was invalidated and thus the
trial court had no jurisdiction to sentence him on any charge. See (Docket
#9-5 at 10).
Respondent accurately notes that Toliver did not cite the federal
Constitution in his argument to the Wisconsin Court of Appeals, nor did
he mention the phrase “due process.” See (Docket #10 at 18–20). But
Toliver is likewise correct when he says that “[a] claim that the circuit
court did not have jurisdiction to sentence him for a crime that did not
exist. . .necessarily implies that he was denied his federal constitutional
right to due process.” (Docket #12 at 15); Yellowbear v. Wyo. Attorney Gen.,
525 F.3d 921, 924 (10th Cir. 2008); Danforth v. Minnesota, 552 U.S. 264, 271
(2008) (recognizing that “[o]riginally, criminal defendants whose
convictions were final were entitled to federal habeas relief only if the
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court that rendered the judgment under which they were in custody
lacked jurisdiction to do so”).
The Wisconsin state cases Toliver cited below understandably do
not mention the federal Constitution as the basis for their subject-matter
jurisdiction. See, e.g., State v. Briggs, 579 N.W.2d 783 (Wis. Ct. App. 1998);
State v. Cvorovic, 462 N.W.2d 897, 898 (Wis. Ct. App. 1990) (“A court does
not have subject matter jurisdiction over a nonexistent offense.”). Yet
subject-matter jurisdiction is undeniably a familiar constitutional
constraint in both state and federal courts. Anderson, 471 F.3d at 815. The
only difference is that federal courts portray the claim as a deprivation of
due process. That convention aside, it is indisputable that the objection to
jurisdiction was fully and fairly presented to the Wisconsin courts. As a
result, the Court concludes that the claim is not procedurally defaulted.
Toliver’s argument is, nevertheless, unavailing. The state appellate
court found that Toliver’s appeal “[did] not stem from the conviction of a
non-existent crime.” (Docket #9-5 at 11). Instead,
Toliver was convicted of crimes that are recognized by
statute, based on a plea agreement he and the State
negotiated. Toliver agreed that the felony murder plea
would remain in tact [sic], and he agreed to substitute a
charge of first-degree reckless endangerment for the charge
of hiding a corpse. The circuit court confirmed with Toliver
that he understood which plea was being vacated. Toliver’s
claim that the circuit court lacked jurisdiction over Toliver’s
felony murder plea is thus without merit.
Id.

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This Court agrees that Toliver’s jurisdictional objection is baseless.2
Toliver asserts that his first plea agreement, in which he pled guilty to
felony murder and hiding a corpse, is unenforceable in light of the parties’
mutual mistake as to its material terms. See (Docket #12 at 15). As a
general legal principle, Toliver’s statement is true; a plea agreement
stands or falls as a whole, and a mutual mistake as to a material term will
invalidate the entire agreement. See United States v. Bradley¸ 381 F.3d 641,
648 (7th Cir. 2004). But, as the Wisconsin Court of Appeals recognized,
that first plea agreement does not form the basis for the instant conviction
and sentence. Thus, there is no subject-matter jurisdiction problem here.
The record of the June 27, 2013 hearing irrefutably establishes that
Toliver agreed to plead guilty to felony murder and accept the trial court’s
previously imposed sentence. At the hearing, the parties noted that the
State filed a new two-count information containing one charge of felony
murder and one charge of reckless endangerment. At that point, the court
presumably could have performed a new plea colloquy and sentencing as
to the felony murder count. But it would have been a wasted effort; the
parties agreed that the plea would still be guilty and the sentence would
remain the same as before. Although the court characterized its maneuver
as not vacating the felony murder plea, in reality this was merely
language of convenience. The truth of the of the matter is that Toliver
effectively renegotiated his plea agreement to encompass a guilty plea to

Toliver says that the Wisconsin court unreasonably determined as a
matter of fact that he had effectively waived his objection to the trial court’s
subject-matter jurisdiction. (Docket #12 at 13–14). But the Court of Appeals’
determination was a legal one, not a factual one. Thus, there is no reason for the
Court to set aside the AEDPA’s deferential standard of review for this ground.
See Carlson, 526 F.3d at 1024.
2

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both counts—felony murder and reckless endangerment—in the new
information.
Because he entered a new and valid plea as to those charges,
Toliver waived any constitutional claim that may have arisen prior to it.
Gomez v. Berge, 434 F.3d 940, 942 (7th Cir. 2006). There are, of course,
exceptions to the notion that a guilty plea waives all prior claims. See id. at
943. Here, however, Toliver has not directed this Court to any authority
suggesting his is such a claim. Indeed, it would be exceedingly odd to
permit a criminal defendant to circumvent his plea as to one offense in
order to complain about some other offense which was not the subject of
the plea. If the other offense formed no part of his conviction or sentence,
what is the defendant protesting? Thus, the Court finds that this is not the
type of claim that could have survived Toliver’s plea, and it is therefore
without merit.
3.3

Ineffective Assistance of Counsel

Toliver’s final claim is that his counsel was constitutionally
ineffective in erroneously calculating his release date. Claims of ineffective
assistance of counsel are governed by Strickland v. Washington, 466 U.S.
668 (1984). To succeed on his ineffective assistance claim, Strickland
requires that Toliver prove his counsel’s performance was deficient and
prejudicial. Id. at 687–88, 694. Counsel’s performance is deficient if it falls
“below an objective standard of reasonableness.” Id. at 687–88. A
petitioner must overcome a strong presumption that trial counsel
performed adequately. See Bieghler v. McBride, 389 F.3d 701, 707–08 (7th
Cir. 2004). To prove prejudice, Toliver must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
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probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. In the context of a guilty plea, this
means Toliver must demonstrate that there is a reasonable probability
that, but for counsel’s error, he would not have pled guilty, and instead
would have insisted upon a trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
“Surmounting Strickland’s high bar is never an easy task.” Richter,
562 U.S. at 105 (quotation omitted). Applied de novo, Strickland is
deferential to counsel. Id. Establishing that a state court’s application of
Strickland was unreasonable in a federal habeas corpus proceeding is
doubly difficult. Knowles, 556 U.S. at 123. “When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Harrington, 562 U.S. at 105.
On this claim, the Wisconsin appellate court concluded that Toliver
had failed to prove prejudice because he had not demonstrated that he
would have gone to trial had he known his correct release date. (Docket
#9-5 at 12). The court reasoned:
[t]o establish a reasonable probability that counsel’s
miscalculation of Toliver’s sentencing credit affected the plea
decision, Toliver must show that he would not have pled
guilty had he known his mandatory release date would
extend past April 2014. The record establishes that Toliver
intended to go to trial as late as June 25, 2013, potentially on
a charge of first-degree intentional homicide, but ultimately
accepted the plea bargain with the encouragement of his
family and defense counsel. Nothing in the record suggests
that Toliver would have rejected the plea deal, or that his
family and counsel would have insisted on trial, if Toliver’s
mandatory release date were later. Indeed, if Toliver had
gone to trial and was found guilty, he faced a lifetime of
imprisonment. Instead, Toliver was released in December
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2014—eight months after his anticipated release date. He has
not put forth any facts which show that he was prejudiced
by this eight month difference.
Id. at 12–13.
Toliver alleges that the Wisconsin Court of Appeals made an
unreasonable determination of the facts in this instance. He reasons that
his testimony that he would not have taken the plea absent release in
April 2014 stands uncontroverted. (Docket #12 at 8–9). Toliver would
require the state court to rely upon some independent evidence in the
record to contradict his statements or else take them at face value. Id.
Accepting his testimony as true would, in turn, require this Court to
undertake a de novo review of trial counsel’s performance. Id.; Carlson, 526
F.3d at 1024.
Federal law foists no such obligation on the state courts, however.
The state court was permitted to assess Toliver’s credibility in light of the
entire record presented. See Morgan v. Hardy, 662 F.3d 790, 799 (7th Cir.
2011). The Court can gainsay such an assessment only if clear and
convincing evidence suggests it is wrong. 28 U.S.C. § 2254(e)(1); Coleman v.
Hardy, 690 F.3d 811, 817–18 (7th Cir. 2012). The question is not whether
this Court would have reached the same conclusion. Burt, 134 S. Ct. at 15.
Here, this Court cannot say that it was clearly wrong for the
Wisconsin court to find Toliver’s insistence on a trial either manufactured
or overblown. Certainly his testimony was undermined by the
encouragement of his family and counsel and the seriousness of the
charges and penalties he faced if he elected to go to trial. These
considerations afforded the Wisconsin Court of Appeals ample ground to
reach the conclusion it did, even when weighed against the idea that the

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State’s case may have weakened through the passage of time. (Docket #12
at 9). Tellingly, Toliver did not hold that belief at his June 2013 sentencing;
he thought all witnesses were living and available. (Docket #9-14 at 22).
Thus, the court did not render an unreasonable determination of the facts
when it found that Toliver would not have rejected the plea deal even
with the release-date correction.
Because there was no clear factual error in the state court decision,
the Court cannot engage in a de novo analysis of trial counsel’s
performance but must apply the AEDPA standard of review. Under that
deferential standard, the Court finds that the Wisconsin court did not err
in applying the teachings of Strickland and Hill in Toliver’s case. The court
reasonably found that Toliver had not demonstrated that he would not
have pled guilty had he been equipped with correct information
regarding his mandatory release date and, as a result, had not shown
prejudice under Hill. It cannot be said that no fairminded jurist would
agree with this conclusion. Harrington, 562 U.S. at 102. Consequently, this
Court’s powers of review are at their end.
4.

CONCLUSION
For the reasons stated above, the Court finds that Toliver’s asserted

grounds for relief are without merit. The petition must, therefore, be
denied.
Under Rule 11(a) of the Rules Governing Section 2254 Cases, “the
district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Toliver must make a
“substantial showing of the denial of a constitutional right” by
establishing that “reasonable jurists could debate whether (or, for that
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matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal citations omitted).
As the Court’s discussion above makes clear, while Toliver has had
two successful bites at the habeas apple, his third attempt is undoubtedly
too far a stretch. No reasonable jurists could debate whether his petition
has merit. As a consequence, the Court is compelled to deny him a
certificate of appealability.
Accordingly,
IT IS ORDERED that Petitioner’s petition for a writ of habeas
corpus (Docket #1) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to
Petitioner’s petition be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 29th day of November, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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