Grady v. Smith
ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 1/6/2021. 16 Respondent's motion to dismiss GRANTED. Petitioner's §2254 petition DISMISSED for procedural default. The court DECLINES to issue certificate of appealability. (cc: all counsel and mailed to Howard Grady at Oshkosh Correctional Institution)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 18-cv-1453-pp
ORDER GRANTING RESPONDENT’S MOTION TO DISMISS (DKT. NO. 16),
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND
On September 17, 2018, the petitioner, an inmate at Oshkosh
Correctional Institution who is representing himself, filed a petition for writ of
habeas corpus under 28 U.S.C. §2254, challenging his July 16, 2015
conviction in Milwaukee County Circuit Court for aggravated battery. Dkt. No.
1 at 8-9; State v. Grady, Milwaukee County Case No. 14CF003988 (available at
https://wcca.wicourts.gov). On September 25, 2019, the court screened the
petition, allowed the petitioner to proceed on both of his claims, and ordered
the respondent to answer or otherwise respond. Dkt. No. 13. About six weeks
later, the respondent filed a motion to dismiss the petition along with a brief in
Under Rule 2 of the Rules Governing Habeas Cases, “[i]f the petitioner is
currently in custody under a state-court judgment, the petition must name as
respondent the state officer who has custody.” The petitioner is an inmate at
Oshkosh Correctional Institution; this order reflects Warden Sarah Cooper as
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support of the motion. Dkt. Nos. 16, 17. The petitioner has filed his opposition
brief. Dkt. No. 18. Because the petitioner procedurally defaulted his claims, the
court will dismiss the petition and the case.
Underlying State Case
On May 15, 2014, the Ozaukee County District Attorney’s Office charged
the petitioner with burglary. State v. Grady, Case No. 14CF000125 (Ozaukee
County Circuit Court) (available at https://wcca.wicourts.gov). The petitioner
pled no contest. Id. On July 29, 2014, the court sentenced the petitioner to
three years of probation and withheld a term of incarceration. Id.
About a month later, the Milwaukee County District Attorney’s Office
charged the petitioner with one count of aggravated battery under Wis. Stat.
§940.19(6) and one count of substantial battery with intent to cause bodily
harm under Wis. Stat. §940.19(2). State v. Grady, Case No. 14CF003988
(Milwaukee County Circuit Court) (available at https://wcca.wicourts.gov). In
Wisconsin, substantial battery is a lesser included offense of aggravated
battery. See, e.g., State v. Jackson, 372 Wis. 2d 458 n.6 (Wis. Ct. App. 2016).
The state brought both charges as domestic abuse offenses with the use of a
dangerous weapon. Dkt. No. 1-1 at 1. The criminal complaint alleged that the
petitioner “hit his live-in girlfriend repeatedly with a hammer to the head after
she refused to give him money to buy drugs.” Id. As a result of the Milwaukee
charges, the Ozaukee County Circuit Court issued a revocation order and
warrant on November 12, 2014. State v. Grady, Case No. 14CF000125
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(Ozaukee County Circuit Court) (available at https://wcca.wicourts.gov). The
court adjourned the petitioner’s revocation hearing until his Milwaukee County
case concluded. Id.
In April of 2015, a Milwaukee jury found the petitioner guilty on both
battery counts. State v. Grady, Case No. 14CF003988 (Milwaukee County
Circuit Court) (available at https://wcca.wicourts.gov). In May, the Ozaukee
County Circuit Court revoked the petitioner’s probation and sentenced him to
seven years and six months of initial confinement followed by five years of
extended supervision on the burglary charge. State v. Grady, Case No.
14CF000125 (Ozaukee County Circuit Court) (available eat https://
wcca.wicourts.gov). The petitioner has a pending habeas case before this court
challenging the Ozaukee County revocation proceedings. Grady v. Smith, Case
No. 18-cv-615 (E.D. Wis.).2
On July 10, 2015, the petitioner returned to Milwaukee County Circuit
Court for sentencing on his battery convictions. State v. Grady, Case No.
14CF003988 (Milwaukee County Circuit Court) (available at https://
wcca.wicourts.gov). The Wisconsin Statutes provide that “[u]pon prosecution
for a crime, the actor may be convicted of either the crime charged or an
included crime, but not both.” Wis. Stat. 939.66. Wis. Stat. §939.66(2m)
The respondent filed her response to the petition May 12, 2020. State v.
Grady, Milwaukee County Circuit Court, Case No. 14CF003988 (Dkt. No. 20).
The court received some documents from the petitioner on May 20, 2020, dkt.
no. 21, but has not yet determined whether those documents constitute a brief
in support of his petition.
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clarifies that “[a]n included crime may be . . . [a] crime which is a less serious
or equally serious type of battery than the one charged.” Before the sentencing
hearing began, the state moved to dismiss the substantial battery conviction
because of concerns related to Wis. Stat. §939.66(2m). Dkt. No. 1-1 at 1. The
circuit judge dismissed Count Two (the substantial battery count) and
sentenced the petitioner to twelve years of initial confinement and three years
of extended supervision on Count One (the aggravated battery count), to be
served consecutively to any other sentence. State v. Grady, Case No.
14CF003988 (Milwaukee County Circuit Court) (available at https://
wcca.wicourts.gov). The instant federal habeas petition challenges the
judgment from the petitioner’s Milwaukee County case.
State postconviction proceedings
Postconviction motion in Milwaukee County Circuit Court
On October 14, 2016, the petitioner filed a postconviction motion in
Milwaukee County Circuit Court seeking a new trial, or alternatively, a
sentence modification. Dkt. No. 1-1 at 1. The petitioner argued that the trial
court failed to adequately instruct the jury on lesser included offenses, and
that this failure resulted in verdicts that violated Wis. Stat. §939.66(2m). Id. at
2. The Milwaukee County Circuit Court explained the petitioner’s argument as
The [petitioner] maintains that it is unknown whether the jury
thought he was more guilty on count one or on count two, and that
it is plain error which entitles him to a new trial because the jury
was instructed to answer both verdicts. He does not cite any legal
support for this proposition; he merely argues that this particular
scenario is distinguished from the situation found in State v.
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Hughes, 248 Wis. 2d 133 (Ct. App. 2001), which is relied on by the
Id. The court then recounted the facts and holding in Hughes:
In State v. Hughes, . . . the jury was instructed only to find the
defendant guilty of possession with intent to deliver if the State met
its burden, and if it didn’t, it should consider the mere possession
charge; but it was not to find the defendant guilty of more than one
of the two offenses. The jury found the defendant guilty of both
offenses. The defendant argued that the verdict was ambiguous and
sought a new trial. The Court of Appeals held that the second guilty
verdict was “mere surplusage and is precisely the type of harmless
error that Wis. Stats. Rule 805.18(2) commands shall not be the
basis for a reversal.” Hughes, 248 Wis. 2d at 141. The court found
that the verdicts were not ambiguous because the jury clearly found
that the State proved beyond a reasonable doubt that the defendant
not only possessed the cocaine but possessed it with intent to deliver
it. It therefore concluded that the defendant was not deprived of any
Id. at 2-3. The court rejected the petitioner’s attempts to distinguish Hughes,
finding that “[t]he jury’s verdict on count one unequivocally reflect[ed] that it
found the State had proved its case against the defendant beyond a reasonable
doubt as to the greater offense.” Id. at 3. The court concluded that “[w]hether
or not the jury was told it should only reach a verdict on count two if it found
the State did not meet its burden on count one is irrelevant to proof of the
elements on count one.” Id. The court dismissed the lesser included offense.
The petitioner also asked the circuit court for a new trial because he
argued that the trial court failed to properly make a record of a note sent from
the jury during deliberations. Id. The court found it “undisputed that the jury
sent out a note and that the note was not retained” and then recounted the
relevant portion of the petitioner’s sentencing hearing:
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THE COURT: . . . The other outstanding issue that the State
reminded the Court of was that we did have a question that I don’t
believe I put on the record. I shouldn’t say a question. It was a note
the jury sent. I am usually good about putting those on the record
and usually we keep a copy of them. For whatever reason, I believe
this jury disposed of it because it didn’t come back with the file and
the binder, and I did not unfortunately make a record of it. I
remember what it was. I understand the State wrote it down. And
this came during deliberations. What was the question?
[THE STATE:] That’s right Judge. I wrote it down because it was
unusual and at the time pretty worrisome to the State. I believe the
exact quote from the jury’s question was ‘proof of burden
explanation’ question mark.
THE COURT: That seems to be correct to me. I remember it having
to do with the burden of proof. I remember it being kind of an oddlyworded question. Does that sound accurate to you, Mr. Mathers?
THE COURT: All right. So I will make the record that that’s what the
jury asked. Then I recall just directing them to the jury instructions.
I did not give them any other specific type of instruction in response,
but I directed them to the burden of proof portion of the jury
instructions, which was on Pages 6 and 7. My recollection is [sic] my
answer to them was please review the burden of proof as instructed
on Pages 6 and 7 of the jury instructions or something to that effect.
Is that your recollection, Mr. Schindhelm?
[THE STATE:] Yes.
THE COURT: And is that is [sic] yours as well, Mr. Mathers?
Id. at 3-4. The court acknowledged the petitioner’s argument that because Wis.
Stat. §805.13(1) requires “all statements or comments by the judge to the jury
to be on the record, a new trial must be ordered because whatever the judge
told the jury in this instance was not placed on the record.” Id. at 4. But the
court found that a new trial was not warranted; it noted that the trial court
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“made a record of what occurred after the fact . . . and, . . . there [was] not a
reasonable probability that anything about the note or the court’s response
could have affected the jury’s verdict.” Id.
Direct appeal of conviction and postconviction order
In September 2017, the petitioner appealed his conviction and the trial
court’s denial of postconviction relief to the Wisconsin Court of Appeals, raising
the same arguments that he had raised in his postconviction motion: the jury
improperly convicted him of both substantial battery and aggravated battery
and the circuit court erred by failing to place the jury note into the record. Dkt.
No. 17-2 at 1, 5, 8, 13-14, 23. The petitioner also argued in the alternative that
the circuit court’s sentence was unduly harsh and should be modified. Id. at 56, 18-19.
The petitioner again asserted that the battery verdicts were improper
under Wis. Stat. §939.66. Id. at 8. The petitioner argued that under that
statute, he could not be convicted on both the crime charged and the included
crime. Id. at 9. At the same time, he cited state case law outlining the general
principles of lesser included offenses in Wisconsin. Id. at 9-10 (citing State v.
Fleming, 181 Wis. 2d 546 (Wis. Ct. App. 1993); State v. Lechner, 217 Wis. 2d
392 (1998); Randolph v. State, 83 Wis. 2d 630 (1978); State v. Muentner, 138
Wis. 2d 374 (1987)).
The petitioner stressed that the jury instructions contained “no
instruction as to a lesser included offense,” did not clarify the “dichotomy as to
the two verdicts” and did not prohibit the jury from finding the petitioner guilty
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of both counts. Id. at 10. He argued that the instructions “clearly
contemplate[d] that it [was] completely acceptable for the jury to find the
defendant guilty of both counts.” Id. at 10-11. The petitioner faulted the trial
court for eventually dismissing the lesser included offense when the jury “was
never given a chance to consider an ‘either-or’ situation for the counts.” Id. at
Regarding the missing jury note, the petitioner asserted that Wis. Stat.
§805.13(1) requires “all statements or comments by the judge to the jury or in
their presence relating to the case” must be on the record after the trial is
sworn. Id. at 13-16. While the petitioner’s argument focused on Wis. Stat.
§805.13, it also referenced constitutional rights generally. He cited State v.
Burton, 112 Wis. 2d 560 (1983) for the proposition that (1) the “accused has a
constitutional right to be present for a circuit court’s communications with the
jury during its deliberations,” (2) “[c]ommunication between a judge and a jury,
while the jury is deliberating, outside the courtroom and outside the presence
of the defendant and defense counsel constitutes constitutional error” and (3) a
“court must consider whether the constitutional error is harmless beyond a
reasonable doubt.” Id. at 16-17. He referred to the jury note issue as one of
“statutory dictates, as well as constitutional magnitude.” Id. at 17. He also
cited State v. Koller, 248 Wis. 2d 259 (Ct. App. 2001), arguing that a trial
court’s communication with a deliberating jury in the absence of the defendant
and defendant’s counsel violates the defendant’s constitutional right to be
present at trial and to have counsel at every stage. Id.
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Finally, the petitioner argued that his sentence was unduly harsh. Id. at
18-19. Conceding that “a prison sentence [was] appropriate in this case,” he
asserted that a fifteen-year sentence was not. Id. at 19. He argued that the
“victim recovered fully within a short period of time[,] but the sentence given to
[the petitioner] essentially assures he will die in prison.” Id. He accused the
court of acting on emotion “to hand out an unduly harsh and unconscionable
On May 30, 2018, the Wisconsin Court of Appeals issued a per curiam
decision affirming the conviction and the trial court’s denial of postconviction
relief. Dkt. No. 17-3. The court found that under State v. Cox, 300 Wis. 2d 236
(Wis. Ct. App. 2007), the decision to vacate the lesser conviction was a
reasonable remedy “because a jury following the correct procedure would end
its deliberations after finding guilt on the greater offense and never reach the
lesser.” Id. at 3. Regarding the jury note, the Court of Appeals found that
“[b]ecause the circuit court addressed the error and remedied it, and the error
was unknown to the jury and therefore did not contribute to the verdict, the
error was harmless.” Id. Finally, the Court of Appeals rejected the petitioner’s
claim that his sentence was unduly harsh, finding that given the petitioner’s
thirty-year criminal record and the fact that the petitioner could have killed the
victim when hitting her repeatedly in the head and face with a hammer, twelve
years of initial confinement was a “reasonable result given the circumstances.”
Id. at 4.
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Petition in the Wisconsin Supreme Court
On July 16, 2018, the petitioner filed a petition in the Wisconsin
Supreme Court asking for “review of a decision of the [Wisconsin Court of
Appeals].” Dkt. No. 17-4. While the petitioner titled this filing “Petition for
review,” the phrase “PETITION FOR WRIT OF HABEAS CORPUS” appears in a
footer on both pages. Id.
As he had in his pleadings to the Wisconsin Court of Appeals, the
petitioner focused on the Wisconsin Statutes while generally referencing the
federal constitution. He asked the Wisconsin Supreme Court to consider
whether “[a] real and significant question of federal or state constitutional law
[was] present,” and whether the Wisconsin Court of Appeals’ decision “is in
conflict with controlling opinions of the United States Supreme Court … or
other court of appeals decision[s].” Id. at 1.
The petitioner maintained that he was entitled to a new trial under Wis.
Stats. §§939.66 and 805.13. Id. He also claimed that his appellate counsel,
attorney Stephen Compton, performed ineffectively; he asserted that he had not
received a decision from the court of appeals or the state public defender. Id.
at 2. He asserted that “[u]nder DOC rules, no inmate can get a copy of [a]
written decision.” Id. (citing Wis. Stat. §809.23). According to the petitioner,
state law required his counsel to file either a petition for review or no-merit
petition in the Wisconsin Supreme Court. Id. (citing State v. Mosley, 102 Wis.
2d 636 (1981)). He said that counsel told him that he “had taken on to[o] many
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case[s]” at that time, was suffering from medical problems and allowed the
petitioner’s deadlines to pass. Id.
Three days later, the Wisconsin Supreme Court ordered Attorney
Compton to respond with explanations of “when he was appointed to represent
[the petitioner], whether he continued to represent [the petitioner] or when his
representation terminated, whether he communicated with [the petitioner]
regarding the filing of a petition for review, and whether he was directed to or
intended to file a petition for review on the petitioner’s behalf but failed to do so
within the [thirty] day time period.” Dkt. No. 17-5 at 1-2.
Attorney Compton informed the Wisconsin Supreme Court that he had
filed many petitions for review and would have been “happy to file the same on
[the petitioner’s] behalf.” Dkt. No. 17-6 at 1. He claimed he had not heard from
the petitioner and had closed his case. Id. Attorney Compton provided the
Wisconsin Supreme Court with a copy of a letter dated June 4, 2018 from him
to the petitioner, informing the petitioner of the decision of the Wisconsin Court
of Appeals and outlining four options for the petitioner to move the case
forward. Id. at 2. The four options included: (1) closing the case, (2) filing a
petition for review in the Wisconsin Supreme court, (3) terminating Attorney
Compton’s representation and proceeding pro se or with other counsel of the
petitioner’s choosing or (4) bringing a motion for reconsideration with the
Wisconsin Court of Appeals. Id. The attorney urged the petitioner to make his
decision quickly “as we only have 30 days to file a Petition for Review.” Id. The
letter explained that Attorney Compton saw no merit to support a petition for
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review but emphasized that if the petitioner wanted him to file one, he would
“absolutely do so.” Id. at 3. Attorney Compton closed by asking the petitioner to
write to him or set up a phone call to advise the attorney of whether the
petitioner wanted him to seek review. Id.
A week later, the Wisconsin Supreme Court construed the petitioner’s
July 16, 2018 filing as a petition for writ of habeas corpus and denied relief.
Dkt. No. 17-7 at 2. The court recounted that
. . . Attorney Compton explains and documents that by letter of
June 4, 2018, he sent [the petitioner] a copy of the court of appeals’
decision and asked him to choose whether to abandon efforts on the
case, or have Attorney Compton file a petition for review, or
terminate Attorney Compton and proceed pro se or with counsel of
his choosing. In his June 4, 2018 letter to [the petitioner], Attorney
Compton asked [the petitioner] to “make a decision quickly as we
have only 30 days to file a Petition for Review,” and to contact him
with his decision. Attorney Compton informs us that [the petitioner]
never responded to his June 4, 2018 letter. We note, too, that
although [the petitioner] claimed in his July 16, 2018 filing that he
had not received a copy of the court of appeals’ decision, he included
a page from that decision as an attachment to his filing.
Id. at 2. The court stated that it could not conclude that the petitioner was
prejudicially deprived of adequate representation on appeal such that the court
would allow the late filing of a petition for review through a habeas petition. Id.
(citing State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246 (1996)).
About six weeks later, the petitioner filed with the Wisconsin Supreme
Court a document titled “Reconsideration Petition for Review;” a week after
that, the court construed that filing as a motion to reconsider its order denying
the state habeas petition, which it denied. Dkt. No. 17-8.
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Federal Habeas Petition
The petitioner filed this federal habeas petition on September 17, 2018.
Dkt. No. 1. This court’s September 25, 2019 screening order identified two
grounds for relief: (1) that the trial court violated Wis. Stat. §939.66(2m) when
it allowed the jury to render guilty verdicts on both battery counts; and (2) that
Wis. Stat. §805.13(1) mandates a new trial because the trial judge failed to
make a record of a note the jury sent to the judge during deliberations. Dkt.
No. 13 at 7-8. While the court noted that it appeared that the petitioner was
alleging violations of state law, not violations of the federal Constitution or
laws, and explained that a federal court could grant habeas relief only if the
state court’s errors violated federal law, id. at 8-10, the court nonetheless
allowed the petitioner to proceed past the Rule 4 screening stage on both
grounds, id. at 10.
Respondent’s Motion to Dismiss (Dkt. No. 16)
On November 14, 2019, the respondent filed a motion to dismiss the
petition based on procedural default. Dkt. No. 16. The petitioner filed a fifteenpage opposition brief accompanied by a table of authorities and exhibits. Dkt.
Nos. 18, 18-1, 18-2.
The respondent argues that the petitioner “did not properly exhaust his
remedies because he did not follow Wisconsin’s established procedure for
petitioning the Wisconsin Supreme Court for review of his claims.” Dkt. No. 17
at 4. She argues that a petitioner must fairly present a constitutional claim
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through at least “one complete round of the state’s established appellate review
process” before presenting the claim to a federal habeas court. Id. at 5 (citing
Hicks v. Hepp, 871 F.3d 513, 530 (7th Cir. 2017)). She asserts that under Wis.
Stat. §808.10(1), “[a] defendant who wishes to seek review of a court of appeals
decision in Wisconsin’s highest court must file a petition for review within 30
days of the court of appeals decision.” Id. at 6. The respondent alleges that the
petitioner filed in the Wisconsin Supreme Court two weeks after that deadline.
The respondent also concludes that “for [the petitioner] to have properly
exhausted his claims in state court, he needed to file a proper petition for
review in the Wisconsin Supreme Court under Wis. Stat. §809.62.” Id. at 5
(citing Moore v. Casperson, 345 F.3d 474, 485-86 (7th Cir. 2003)). According to
the respondent, the petitioner’s July 16, 2018 filing in the Wisconsin Supreme
Court “was not a petition for review at all.” Id. at 6. She emphasizes that while
the petitioner “captioned the document in one place as a petition for review, he
also captioned it as a petition for writ of habeas corpus.” Id. She asserts that
the filing “did not meet the requirements for a petition for review set forth in
Wis. Stat. §809.62(2)” because it contained “no table of contents, no
explanation of how the case met the court’s criteria for review, and no real
argument stating the reasons for reversing the court of appeals’ decision.” Id.
at 6-7. She notes that “[t]he Wisconsin Supreme Court treated the filing as a
writ petition rather than an untimely petition for review.” Id. at 7.
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Next, the respondent argued that “[e]ven if the court finds that [the
petitioner] properly exhausted his claims,” the court should dismiss the
petition because the petitioner did not fairly present those claims to the
Wisconsin courts “as constitutional issues.” Id. at 7. She argues that to fairly
present a claim in state court, the petitioner must have “alerted that court to
the federal nature of the claim.” Id. at 8 (citing Bolton v. Akpore, 730 F.3d 685,
695 (7th Cir. 2013); Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001)). The
respondent asserts that of the three issues the petitioner presented to the
Wisconsin Court of Appeals, two were based on specific Wisconsin statutes and
the third related only to the alleged harshness of the sentence. Id. The
respondent argues that the petitioner cited no constitutional provisions or
federal cases and asserts that “to the extent his brief cited cases that
concerned constitutional principles, it is clear that the intent was to show the
‘magnitude’ of the statutory issue rather than frame it as any sort of
constitutional error.” Id. at 9. The respondent contends that “[the petitioner’s]
filing in the Wisconsin Supreme Court . . . cited a total of three cases decided
by Wisconsin courts, and its only reference to constitutional principles is in
reciting the court’s criteria for review.” Id.
Petitioner’s Response to the Motion to Dismiss (Dkt. No. 18)
The petitioner stresses the merits of his petition; he contends that the
issue relating to “Wisconsin statutes 939.66 lesser-included charges” involves a
violation of his federal due process rights under the Fourteenth Amendment.
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Dkt. No. 18 at 1. He asserts that “omitting elements of jury instruction”
violated Fed. R. Crim. P. 31 and 433 and “Sixth Amendment Due Process.” Id.
Regarding procedural default, the petitioner argues that the state courts
have had their opportunity to hear his claims; he filed a direct appeal, a motion
for postconviction relief, a petition for review in the Wisconsin Supreme Court
and a motion for reconsideration in the Wisconsin Supreme Court. Id. at 2. The
petitioner also asserts that he was “having problems with attorney Compton on
filing direct appeal;” he claims that Attorney Compton “was obligated to file a
petition for review” but did not, so the “petitioner motion the courts for review.”
Id. at 3. The petitioner alleges a “[s]ubstantial question about the previous
lawyers general fitness as a lawyer,” alleges ineffective assistance and claims
that his attorney “made a single serious mistake that may have prejudice the
petitioner, by not petitioning Wisconsin Supreme Court for review.” Id.
The respondent elected not to reply. Dkt. No. 19.
The respondent first argues that the court must dismiss the petition
because the petitioner failed to “properly exhaust.” Dkt. No. 17 at 4. Under 28
The Federal Rules of Criminal Procedure are the rules that govern how
criminal cases are conducted in federal court. They do not apply in state court;
Wisconsin courts have their own rules of criminal procedure. The Federal Rules
of Criminal Procedure are not laws; even if a state court takes some action that
does not comport with the Federal Rules of Criminal Procedure (rules which do
not apply to the state court), that violation would be cognizable by a federal
court in a habeas case only if the violation rose to the level of violation the
federal Constitution or some federal statute.
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U.S.C. §2254(b)(1)(A), a federal court cannot grant habeas relief unless the
petitioner exhausts the available state court remedies. Generally, a court
considers a claim exhausted if a petitioner presents it through one “complete
round of the State’s established appellate review process.” Woodford v. Ngo,
548 U.S. 81, 92 (2006) (citation omitted); Hicks, 871 F.3d at 530. This includes
presenting a claim to the state’s highest court in a petition for discretionary
State-court remedies are considered “exhausted” when they are no longer
available, regardless of the reason for their unavailability. Ngo, 548 U.S. at 9293. If
state-court remedies are no longer available because the prisoner
failed to comply with the deadline for seeking state-court review or
for taking an appeal, those remedies are technically exhausted . . .
but exhaustion in this sense does not automatically entitle the
habeas petitioner to litigate his or her claims in federal court.
Instead, if the petitioner procedurally defaulted those claims, the
prisoner generally is barred from asserting those claims in federal
Id. (citing Gray v. Netherland, 518 U.S. 152, 161 (1996); Coleman v.
Thompson, 501 U.S. 722, 744-51 (1991)).
Under Wis. Stat. §808.10(1), a decision of the Wisconsin Court of Appeals
is reviewable by the Wisconsin Supreme Court only upon a petition for review
granted by the Wisconsin Supreme Court, and the petition must be filed in the
Wisconsin Supreme Court within thirty days of the date of the decision of the
Wisconsin Court of Appeals. The Wisconsin Court of Appeals affirmed the
petitioner’s conviction on May 30, 2018. At that point, the petitioner had an
unexhausted and available state-court remedy.
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The petitioner did not file anything in the Wisconsin Supreme Court until
July 16, 2018—forty-nine days after the Wisconsin Court of Appeals affirmed
his conviction and nineteen days beyond the deadline for filing a petition for
review under Wis. Stat. §808.10(1). Once that deadline passed, seeking review
in the Wisconsin Supreme Court no longer was a remedy available to the
petitioner. Perhaps for this reason, the respondent repeatedly stresses that the
petitioner has not “properly” exhausted his state court remedies. See, e.g., Dkt.
No. 17 at 4, 5. As the United States Supreme Court explained in Ngo, however,
at that point, this state-court remedy technically was exhausted because it was
unavailable, “regardless of the reason for [its] unavailability.” Ngo, 548 U.S. at
92-93. For this reason, the court must conclude that the petitioner has met the
statutory requirement that he exhaust his state-court remedies before filing his
federal habeas petition (even if that exhaustion was not, as the respondent
urges, “proper” under state law).
Even if a petitioner meets the statutory requirement that he exhaust his
“[a] habeas petitioner who has failed to meet the State’s procedural
requirements for presenting his federal claims has deprived the state
courts of an opportunity to address those claims in the first
instance.” Coleman [v. Thompson], 501 U.S. , at 732 [(1991)].
[Courts] therefore require a prisoner to demonstrate cause for his
state-court default of any federal claim, and prejudice therefrom,
before the federal habeas court will consider the merits of that claim.
Id., at 750 . . . . The one exception to that rule . . . is the circumstance
in which the habeas petitioner can demonstrate a sufficient
probability that [the court’s] failure to review his federal claim will
result in a fundamental miscarriage of justice. Ibid.
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Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
The petitioner did not give the Wisconsin Supreme Court the opportunity
to consider his federal claims. First, he did not follow the correct procedure for
presenting those claims to the Wisconsin Supreme Court. The petitioner insists
in his reply brief that his July 16, 2018 filing in the Wisconsin Supreme Court
was a petition for review.4 Dkt. No. 18 at 2. If so, that petition was untimely
under Wis. Stat. §808.10(1). Again, the petitioner did not file anything in the
Wisconsin Supreme Court until July 16, 2018—forty-nine days after the
Wisconsin Court of Appeals affirmed his conviction and nineteen days after the
deadline for filing a petition for review under §808.10(1).
The petitioner asserts that the reason his petition for review was not
timely filed was because Attorney Compton provided him with ineffective
assistance of counsel. Dkt. No. 18 at 3. The record evidence does not support
The Wisconsin Supreme Court construed the petitioner’s July 16, 2018 filing
as a habeas petition, not a petition for review. Under that scenario, the
petitioner’s claims also are procedurally barred. If the filing was a habeas
petition, the petitioner did not present his claims through one complete round
of Wisconsin’s established appellate review process. Hicks, 871 F.3d at 530
(clarifying one complete round “includes . . . a petition for discretionary
review”). Because it is now too late for the petitioner to return to the Wisconsin
Supreme Court to petition for discretionary review, the petitioner’s habeas
claims would be procedurally barred. Bolton v. Apkore, 730 F.3d 685, 696 (7th
Cir. 2013) (citing Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004)
(“Procedural default generally precludes a federal court from reaching the
merits of a habeas claim when the claim was not presented to the state courts
and it is clear that the state courts would now find the claim procedurally
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this claim; Attorney Compton provided the Wisconsin Supreme Court with his
June 4, 2018 letter to the petitioner in which he explained the petitioner’s
options and asked the petitioner to contact him. Attorney Compton advised the
Supreme Court that the petitioner did not contact him and the petitioner has
not denied that in his pleadings in this court. Rather, the petitioner appears to
believe that Attorney Compton was obligated to file a petition for review
whether the petitioner asked him to or not. That is not the case.
Even if there was evidence showing that Attorney Compton provided
ineffective assistance of counsel, and that that ineffective assistance was what
caused the petitioner’s petition for review to be filed late, that ineffective
assistance cannot be used to establish “cause” for procedural default until the
petitioner has presented it “to the state courts as an independent claim.”
Murray v. Carrier, 477 U.S. 478, 489 (1986). In Wisconsin, a person asserting
that his appellate counsel was ineffective must file with the Wisconsin Court of
Appeals a petition under State v. Knight, 168 Wis.2d 509 (1992), giving the
appellate court the opportunity to determine whether counsel was ineffective.
The petitioner has not shown that the court of appeals has ruled on whether
Attorney Compton was ineffective, so the petitioner’s claim that Compton was
ineffective cannot be used as “cause” for his failure to follow the Wisconsin
Supreme Court’s procedural rules.
Second, the petitioner did not give the Wisconsin courts the opportunity
to consider his federal claims because he did not present the federal claims to
the Wisconsin courts. “Inherent in the habeas petitioner’s obligation to exhaust
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his state court remedies before seeking relief in habeas corpus, is the duty to
fairly present his federal claims to the state courts.” King v. Pfister, 834 F.3d
808, 815-16 (7th Cir. 2016) (quoting Lewis v. Sternes, 390 F.2d 1019, 1025
(7th Cir. 2004)); see also O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999).
“Fair presentment requires assertion of a federal claim through ‘one complete
round of state-court review,’ which means that ‘the petitioner must raise the
issue at each and every level in the state court system, including levels at
which review is discretionary rather than mandatory.’” King, 834 F.3d at 815
(quoting Lewis, 390 F.3d at 1025-26).
“Fair presentment of an issue requires a petitioner to put forward both
the operative facts and the controlling legal principles.” Pole v. Randolph, 570
F.3d 922, 936 (7th Cir. 2009) (citing Sanders v. Cotton, 398 F.3d 572, 580 (7th
Cir. 2005)). Fair presentment does not necessarily require that the petitioner
explicitly present the federal claim; it requires that “the substance of a federal
habeas corpus claim must first be presented to the state courts.” Picard v.
Connor, 404 U.S. 270, 278 (1971); White v. Peters, 990 F.2d 338, 341 (7th Cir.
1993) (“[A]lthough a habeas petitioner need not set forth constitutional chapter
and verse to exhaust his state remedies, he must do more than simply set forth
the underlying facts related to his federal constitutional claim.”) (citing
Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam)).
Where a petitioner has not fairly presented his federal claims, the federal
court considers the claims procedurally defaulted and does not address their
merits. Hicks, 871 F.3d at 531 (citing Lombardo v. United States, 860 F.3d
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547, 555 (7th Cir. 2017)). Again, if a petitioner procedurally defaulted on a
claim, a federal habeas court generally cannot review that claim. Ngo, 548 U.S.
at 93 (citing Gray, 518 U.S. at 162 (1996); Coleman, 501 U.S. at 744-51
(1991)). A procedural default bars a federal court from granting habeas relief
unless a petitioner demonstrates cause for the default and resulting prejudice,
or that a miscarriage of justice would result if the court did not address his
claim on the merits. Perruquet, 390 F.3d at 514.
Fair presentment requires a habeas court to “consider whether ‘the state
court was sufficiently alerted to the federal constitutional nature of the issue to
permit it to resolve that issue on a federal basis.’” Whatley v. Zatecky, 833 F.3d
762, 771 (7th Cir. 2016) (citing McDowell v. Lemke, 737 F.3d 476, 482 (7th Cir.
2013)). The Seventh Circuit has identified four factors for a court to consider in
determining whether a petitioner sufficiently alerted the state courts to the
federal constitutional nature of a claim: (1) whether the petitioner relied on
federal cases that engage in a constitutional analysis; (2) whether the petitioner
relied on state cases which apply a constitutional analysis to similar facts; (3)
whether the petitioner framed the claim in terms so particular as to call to
mind a specific constitutional right; or (4) whether the petitioner alleged a
pattern of facts that is well within the mainstream of constitutional litigation.
Id. (citing Smith v. Brown, 764 F.3d 790, 796 (7th Cir. 2014)). “All four factors
need not be present to avoid default, and conversely, a single factor alone does
not automatically avoid default.” Id. (citing Wilson v. Briley, 243 F.3d 325, 32728 (7th Cir. 2001)). “[O]rdinarily, a state prisoner does not ‘fairly present’ a
Case 2:18-cv-01453-PP Filed 01/06/21 Page 22 of 37 Document 21
claim to a state court if that court must read beyond a petition or a brief (or a
similar document) that does not alert it to the presence of a federal claim in
order to find material . . . that does so.” Baldwin v. Reese, 541 U.S. 27, 32
The petitioner’s brief to the Wisconsin Court of Appeals did not alert that
court to the potential constitutional component of his claims. The brief did not
rely on, or even cite, any federal cases or federal constitutional provisions. Dkt.
No. 17-2. The brief primarily cited Wis. Stats. §§939.66 and 805.23 and
Wisconsin caselaw discussing those statutes; the table of contents listed ten
decisions issued by Wisconsin courts and three Wisconsin statutes. Id. at 2-3
(citing State v. Fleming, 181 Wis. 2d 546 (Ct. App. 1993); State v. Lechner, 217
Wis. 2d 392 (1998); Randolph v. State, 83 Wis. 2d 630 (1978); State v.
Muentner, 138 Wis. 2d 374 (1987); State v. Burton, 112 Wis. 2d 560 (1983);
State v. Koller, 248 Wis. 2d 259 (Ct. App. 2001); Bastian v. State, 54 Wis. 2d
240 (1972); State v. Crochiere, 273 Wis. 2d 57 (2004); State v. Stenklyft, 281
Wis. 2d 484 (2004); State v. Wuensch, 69 Wis. 2d 467 (1975)).
None of the cases that the petitioner cited would have alerted the
Wisconsin Court of Appeals that the petitioner was raising constitutional
issues. Fleming, Crocheire and Wuensch do not discuss the federal
constitution or constitutional rights at all. Fleming discusses judicial estoppel
and state evidentiary law. Fleming, 181 Wis. 2d at 556, 560, 563. The
petitioner cited Fleming in support of the argument that “evidence at trial may
suggest . . . that an instruction on a lesser included offense may be appropriate
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and a defendant cannot assert error simply because a lesser included offense is
allowed along with an accompanying jury instruction.” Dkt. No. 17-2 at 9.
Crochiere discusses Wisconsin’s requirements for sentence modifications.
Crochiere, 273 Wis. 2d at 62-74. The petitioner cited Crocheire for the
proposition that Wisconsin courts have the power to modify a sentence. Dkt.
No. 17-2 at 20. Further, the Wisconsin Supreme Court abrogated Crochiere in
State v. Harbor, 333 Wis. 2d 53 (2011). “The sole issue” in Wuensch “is
whether the trial court abused its discretion in reducing [a] sentence.”
Wuensch, 69 Wis. 2d at 468. The petitioner cited Wuensch in support of the
argument that the Wisconsin Court of Appeals had the power to modify his
sentence. Dkt. No. 17-2 at 20-21.
The petitioner cited some cases that involved constitutional concerns,
but did not utilize them to illustrate or support any constitutional arguments of
his own. Lechner addresses whether Wisconsin violated a defendant’s
constitutional rights to be free from double jeopardy when it sentenced that
defendant for multiple crimes arising out of one instance of reckless driving
and one victim. Lechner, 217 Wis. 2d at 396-97. The petitioner cited Lechner
only for the proposition that “[Wis. Stat. §939.66] does not bar multiple
convictions where the crimes are equally serious.” Dkt. No. 17-2 at 9. Bastian
rejected an argument that a defendant was “denied due process or prejudicial
error committed because various proceedings in the case were conducted by
different assistant district attorneys.” Bastian, 54 Wis. 2d at 249. The
petitioner cited Bastian to argue that a sentence of probation was more
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appropriate than confinement under the ABA Standards adopted by the
Wisconsin Supreme Court. Dkt. No. 17-2 at 19. Stenklyft touches on the
constitutionality of Wis. Stat. §973.195, which governs sentence adjustments.
Stenklyft, 281 Wis.2d at 522-528. As he did with Crochiere, the petitioner cited
Stenklyft in support of his argument that his sentence was unduly harsh and
should be modified. Dkt. No. 17-2 at 20.
The Randolph case—superseded by statute in 1986—primarily discusses
Wis. Stat. §939.66 and lesser included offenses under Wisconsin law in the
context of jury instructions. Randolph, 83 Wis. 2d at 642-647. Aside from a
single mention of procedural due process, it engaged in no constitutional
analysis. Id. at 644. The petitioner did not cite Randolph in a constitutional
context, but to discuss lesser included offenses under Wisconsin law. Dkt. No.
17-2 at 9. Muentner does not involve constitutional analysis and does not
mention constitutional rights aside from a single mention of a “constitutionally
fair trial;” that case considered whether a defendant had waived a statute of
limitations defense to a lesser included offense. Muentner, 138 Wis. 2d at 388.
The petitioner cited Muentner in support of the assertion that “the courts have
also consistently looked to proper instruction of the jury as a prerequisite in
sending a jury back to consider a lesser included offense.” Dkt. No. 17-2 at 910.
The last few cases the petitioner cited gave the Court of Appeals no
reason to think that he was raising federal constitutional claims. Burton, 112
Wis. 2d 560, discusses constitutional rights in the context of ex parte
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communications between a trial judge and the jury. The petitioner cited Burton
for the proposition that “[the] accused has a constitutional right to be present
for a circuit court’s communications with the jury during its deliberations.”
Dkt. No. 17-2 at 16. The Wisconsin Supreme Court overruled Burton in State
v. Alexander, 349 Wis. 2d 327 (2013)—well before the petitioner filed his brief
in the Wisconsin Court of Appeals in November of 2017. In Alexander, the
Wisconsin Supreme Court determined that “[a]dopting a requirement that a
defendant must always be present whenever a court speaks with members of
the jury would . . . impose an unreasonable and unnecessary burden upon trial
judges, who would be forced to ensure the presence of defendants at meetings
where they had nothing to contribute to their own cause, and where their
presence could in fact be highly counterproductive. Alexander, 349 Wis. 2d at
Similarly, Koller discusses constitutional rights, including the standards
applicable to and the substance of ineffective assistance of counsel claims, 248
Wis. 2d at 270-75, the right to be free from double jeopardy, id. at 275-82, and
the constitutional right to be present at trial, id. at 293-96. As the petitioner
argues, the Koller case states that communications between the trial court and
a deliberating jury in the absence of the defendant and the defendant’s counsel
violate the defendant’s constitutional right to be present at trial and to have
counsel at every stage where he or she needs aid in dealing with legal
problems. Id. at 293; Dkt. No. 17-2 at 17. Koller, however, relies on Burton for
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that constitutional premise, and the Wisconsin Supreme Court overruled
Burton in 2013. Koller, 248 Wis. 2d. at 293.
In sum, the petitioner’s arguments to the Court of Appeals focused
exclusively on whether the trial court had complied with Wis. Stats. §§939.66
and 805.13. Dkt. No. 17-2 at 5, 8, 13.
The petitioner’s July 16, 2018 filing in the Wisconsin Supreme Court
similarly focused solely on these statutes with the exception of his reference to
the standard of review, in which he stated that a question of “federal or state
constitutional law was present” and that “the [Wisconsin Court of Appeals’]
decision [was] in conflict with controlling opinions of the United States
Supreme Court.” Dkt. No. 17-4 at 1. He disputed “[h]ow the [Wisconsin Court
of Appeals] decided the issues and affirm[ed] the convict[ion]s under [Hughes.]
Id. He argued that his appellate counsel should have filed a no-merit petition or
a petition for review under State v. Mosley, 102 Wis. 2d 636 (1981). Id. at 2.
Even the federal habeas petition in this case made no mention of federal
constitutional claims. While the petitioner added several federal cases to his
table of contents, dkt. no. 1 at 4, his statement of issues again focused solely
on Wis. Stat. §§939.66(2) and 805.13(1), dkt. no. 1 at 6. Nowhere in the
petition did the petitioner mention the Constitution. It was not until he filed his
reply brief in this federal habeas case that the petitioner asserted that his
claims involved the Sixth and Fourteenth Amendments. Neither the Wisconsin
Court of Appeals nor the Wisconsin Supreme Court had the opportunity to
consider whether the petitioner’s case involved violations of the Sixth and
Case 2:18-cv-01453-PP Filed 01/06/21 Page 27 of 37 Document 21
Fourteenth Amendments, because the petitioner never presented those courts
with that question.
The petitioner could have tried to articulate his claims regarding the trial
court’s decision to dismiss the lesser included count post-verdict and the trial
court’s failure to address the jury note in the petitioner’s presence in
constitutional terms, such that the Wisconsin Supreme Court would have
recognized them as being in the “mainstream of constitutional litigation.”
Whatley, 833 F.3d at 771. The petitioner did not do so; he framed his claims in
the Wisconsin courts as claims regarding application of Wisconsin statutes.
Dkt. No. 17-2. “A federal court cannot disagree with a state court’s resolution
of an issue of state law.” Miller v. Zatecky, 820 F.3d 275, 277 (7th Cir. 2016)
(citing Bradshaw v. Richey, 546 U.S. 74 (2005)). The petitioner did not fairly
present the Wisconsin courts with his constitutional claims.
Because the petitioner procedurally defaulted on his constitutional
claims, the court must dismiss the petition.
Because the petitioner has procedurally defaulted—he never gave the
Wisconsin courts the opportunity to consider his constitutional claims—this
court cannot rule on the merits of his petition. The court observes, however,
that the petitioner asserted for the first time in his reply brief that the jury’s
verdicts convicting him of both battery offenses and the trial court’s dismissal
of the lesser-included offense somehow violated the Fourteenth Amendment’s
guarantee of due process. Dkt. No. 18 at 1. The court cannot determine what
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that violation would be. The U.S. Supreme Court has issued several decisions
instructing courts regarding when they must give jury instructions about lesser
included offenses. See, e.g., Beck v. Alabama, 447 U.S. 625 (1980) (reversing
sentence of death as unconstitutional when jury was not permitted to consider
a verdict of a lesser included, noncapital offense); Hopper v. Evans, 456 U.S.
605 (1982) (due process requires lesser included offense instruction only if
evidence supports such an instruction); Hopkins v. Reeves, 524 U.S. 88 (1998)
(if there is no lesser included offense, a lesser included offense instruction
detracts from the rationality of the process). But the petitioner has not argued
that the jury instructions were not proper. The petitioner makes no mention of
the Double Jeopardy Clause of the Fifth Amendment (applicable to the states
through the Fourteenth Amendment), but even if he had, that clause prohibits
multiple punishments for the same offense. See, e.g., Brown v. Ohio, 432 U.S.
161, 164-65 (1977). The petitioner was not punished twice because the state
sought, and the court granted, dismissal of the lesser included offense. If the
state court committed some constitutional violation, the court cannot
immediately discern what it would be.
As for his claim regarding the jury note, the court can conceive of a
constitutional argument that the petitioner might have made. The petitioner
asserts that “a note drafted by the jury and given to the court was neither
considered contemporaneously nor preserved by the court during trial.” Dkt.
No. 1 at 21. He stresses that he “was not present in court when the jury note
was first brought to the attention of the court,” and he “first became aware of
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[it] during the sentencing hearing.” Id. at 22-23. The petitioner argues that
because the trial judge failed to preserve the note or enter it into the record,
and because the petitioner was not present when the court first addressed the
note, the court violated his Sixth Amendment right to be present at his trial
and his Due Process rights under the Fourteenth Amendment. Dkt. No. 18 at
“[A] defendant has a sixth amendment right to confront witnesses or
evidence against him.” U.S. v. McCoy, 8 F.3d 495, 496 (7th Cir. 1993). That
right is not implicated in all events of a trial. For example, a defendant has no
Sixth Amendment right to be present at side-bar conferences, when “no
witness or evidence against [a defendant] [is] presented.” Id. (citing Verdin v.
O’Leary, 972 F.2d 1467 (7th Cir. 1992)). “The Due Process Clause supplements
[a defendant’s Confrontation Clause right] by protecting the defendant’s right to
be present during some stages of the trial where the defendant’s ability to
confront a witness against him is not in question—ex parte communications
between the judge and jury fall into this category.” Moore v. Knight, 368 F.3d
936, 940 (7th Cir. 2004).
“[T]he mere occurrence,” however, “of an ex parte conversation between a
trial judge and a juror does not constitute a deprivation of any constitutional
right.” U.S. v. Gagnon, 470 U.S. 522 (1985) (citing Rushen v. Spain, 464 U.S.
114, 125-26 (1983)). “Such communications between the judge and jury will
violate the defendant’s right only when the defendant’s presence, ‘has a
relation, reasonably substantial, to the fulness of his opportunity to defend
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against the charge.’” Moore, 368 F.3d at 940 (quoting Gagnon, 470 U.S. at
526). A court will “look to see if the communications had a prejudicial effect on
the defendant and rendered the trial ‘fundamentally unfair.’” Id. (quoting
Ellsworth v. Levenhagen, 248 F.3d 634, 640 (7th Cir. 2001)). The United States
Supreme Court found an ex parte communication to result in harmless error,
for example, when it “did not discuss any fact in controversy.” Rushen, 464
U.S. at 121. The Seventh Circuit Court of Appeals “ha[s] noted that a ‘brief
procedural remark’ by the judge to the jury, off the record, will not rise to the
level of constitutional error.” Moore, 368 F.3d at 941 (citing Ellsworth, 248
F.3d at 642).
In Verdin, the Seventh Circuit denied habeas relief when a petitioner
claimed that an ex parte communication between the judge and jury violated
the petitioner’s Due Process rights. In the state case underlying Verdin, an
Illinois jury found the petitioner guilty of murder and manslaughter. Verdin,
972 F.2d at 1471. The court instructed the jury that dual guilty verdicts on
those charges were improper and asked the jury to deliberate again and decide
on one verdict. Id. “While the jury was re-deliberating and the parties had left
the courtroom, the jury passed a note to the trial judge, who answered it
without consulting counsel and without entering the note or his response on
the record.” Id. The question from the jury regarded how to present the verdicts
to the court, should they find the petitioner guilty of murder. Id.
On habeas review, “the district court . . . concluded that a
communication between judge and jury outside of the presence of counsel does
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not violate the Constitution unless it ‘so infects the trial process as to make the
trial as a whole fundamentally unfair.’” Id. at 1480. (citing Gagnon, 470 U.S. at
522. “The district court also relied upon [the Seventh Circuit’s] subsequent
conclusion that “[a] judge’s failure to show jurors’ notes to counsel and allow
them to comment before responding violates Fed. R. Crim. P. 43(a), not the
Constitution.” Id. at 1481 (citing United States v. Widgery, 778 F.2d 325, 329
(7th Cir. 1985)). “[T]he district court concluded that the ex parte
communication did not have sufficient prejudicial effect to rise to the level of a
constitutional violation.” Id. at 1481.
“Ten weeks later, . . . the district court reversed itself on this issue:” “[i]n
light of the intervening decisions in Falconer [v. Lane, 905 F.2d 1129 (7th Cir.
1990)] and Rose [v. Lane, 910 F.2d 400 (7th Cir. 1990)], the court found that
the judge-jury communication combined with the jury instructions to confuse
the jury as to which verdict it should return if it found the elements of both
counts to be satisfied.” Id. It found that “the record show[ed] a likelihood of
prejudice from the ex parte contact,” and granted relief. Id.
On appeal, the Seventh Circuit noted that “[t]he district court was correct
to rely upon . . . Gagnon and Widgery to handle the ex parte judge-jury
communication.” The court added that under Gagnon,
a defendant has a due process right to be present at a proceeding
“whenever his presence has a relation, reasonably substantial, to
the fulness of his opportunity to defend against the charge. . . . [T]he
presence of a defendant is a condition of due process to the extent
that a fair and just hearing would be thwarted by his absence, and
to that extent only.”
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Id. (quoting Gagnon, 470 U.S. at 526-27). The court held that, “[i]n Mr. Verdin’s
case, the jury question and the trial court’s response did not implicate Sixth
Amendment concerns; no witnesses or evidence were presented against him in
his absence.” Id. at 1481-82. “[I]f Mr. Verdin had a constitutional right to be
present at the exchange,” the court found, “it stemmed from his due process
right to be present ‘whenever his presence has a relation, reasonably
substantial, to the fulness of his opportunity to defend against the charge . . .
to the extent that a fair and just hearing would be thwarted by his absence.’”
Id. at 1482 (citing Gagnon, 470 U.S. at 526). “Only a trial fundamentally unfair
in light of the entire proceedings,” the court continued, “violates the openended aspect of [this] constitutional protection. Id. (quoting Widgery, 778 F.2d
The court held that “[b]ecause it accept[ed] the Illinois Appellate Court’s
finding that the trial court’s communication with the jury was a brief
procedural remark that did not mislead the jury, [it] must conclude that
fairness and justice were not thwarted by Mr. Verdin’s absence at the
exchange. Id. (citing Gagnon, 470 U.S. at 526). “Thus,” the court found, “the
district court was correct in its original assessment . . . [that] the ex parte
communication did not have sufficient prejudicial effect to rise to the level of a
due process violation.” Id.
In the petitioner’s case, the judge read a jury note regarding the burden
of proof in the petitioner’s absence. It did not render the trial fundamentally
unfair when, outside of the presence of the petitioner, the judge considered a
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question from the jury about the burden of proof and responded by simply
referring the jury to the jury instructions. This exchange involved no evidence
against the petitioner, and it is hard to fathom how the the Sixth Amendment
could have been implicated. Verdin, 972 F.2d at 1481-82. The court is hardpressed to see how the petitioner’s presence at the exchange could have had
any reasonably substantial relation to the fulness of his opportunity to defend
against his battery charges. Gagnon, 470 U.S. at 526. This is especially true if
the defendant’s lawyer was present during the exchange.
The court ultimately corrected its error and made a record of the note at
the petitioner’s sentencing hearing. Dkt. No. 1-1 at 3-4. All parties, including
defense counsel, recalled that the note read, “proof of burden explanation?” Id.
All parties recalled that the trial judge declined to answer the substance of the
question, and instead directed the jury to the discussion of the burden of proof
as it was stated in the jury instructions. Id. The petitioner has cited no federal
cases finding a constitutional violation from a trial court’s failure to make a
contemporaneous record of the jury’s question about the burden of proof.
In Kelley v. Parke, 96 F.3d 1450 (Table) (7th Cir. 1996), the Seventh
Circuit rejected a claim similar to the petitioner’s. In Parke, the petitioner
argued that the state trial record was inadequate because the trial judge did
not make a contemporaneous record of his comments to the jury regarding
sequestration. Id. at *1. The Seventh Circuit held that
[b]ecause it is clear that a judge’s comments to a jury regarding
sequestration does not violate any established constitutional
principle, there is no need to establish word for word what the judge
said to the jury in the instant case. In addition, even though no
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contemporaneous record was made of the judge’s comments, the
state court record of the post-conviction hearing, at which both
Kelley and his trial attorney testified, provides a satisfactory account
of the statements in question. Moreover, in his appeal to this court,
Kelley has not put forth a different version of the events than is
reflected in the transcript of the hearing. Therefore, because he does
not allege facts that if true would entitle him to relief, “a hearing at
which [Kelley] may prove those facts [would be] useless.”
Id. at 3 (quoting Matta-Ballesteros v. Henan, 896 F.2d 255, 258 (7th Cir.), cert.
denied, 498 U.S. 878 (1990)). The court denied habeas relief. Id.
As mentioned above, the Wisconsin Supreme Court confronted a similar
issue in State v. Alexander, 349 Wis. 2d 327 (2013). In that case, the court
[w]e acknowledge that some of the language in our case law has been
in tension with the concept that a defendant does not have an
absolute constitutional right to attend every in-chambers
conference. For example, in State v. Burton, 112 Wis. 2d 560 . . .
[w]e held that “communication between a judge and a jury, while the
jury is deliberating, outside the courtroom and outside the presence
of the defendant and defense counsel constitutes constitutional
error, if the defendant has not waived the constitutional right to be
This holding, however, was in direct contradiction to our decision
just three years earlier in May v. State, 97 Wis. 2d 175 (1980). In
that case, during deliberations the jury asked the circuit court the
following question related to the charged offense of delivering a
controlled substance as a party to a crime: “‘By withdrawing from a
conspiracy has a person removed themselves (sic) from aiding and
abetting the commission of a crime?’” The court answered the
question “no,” without informing the defendant or his attorney. Two
issues related to this incident were raised on appeal: (1) did the
circuit court err in answering the question in the absence of
counsel?; and (2) did the circuit court err in answering the question
in the absence of the defendant?
As to the first question, we held that because “there was no waiver
in this case, counsel should have been given the opportunity to
confer with the court about the appropriate response to be given to
the jury’s question. It was error for the trial court to answer the
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question without notifying counsel.” On the second question,
however, we held that “[a] fair and just trial was not thwarted by the
court’s answering that question outside the defendant’s presence.
The question posed by the jury dealt with a question of law and the
trial court answered it correctly.” Additionally, “[n]othing transpired
which was prejudicial or harmful to the defendant’s cause,
especially in view of the fact that the trial court subsequently reread
to the jury the instructions concerning party to a crime.” All that
due process and Wis. Stat. §971.04 required was that the
defendant’s attorney be present.
Alexander, 349 Wis. 2d at 340-41 (internal citations omitted). The court held
that “May [was] more soundly reasoned and more consistent with the
precedent of [the Wisconsin Supreme Court] and that of the U.S. Supreme
Court” and overruled Burton. Id. at 341-42.
The court cannot rule on the merits of the petitioner’s (newly identified)
constitutional claims, because he never gave the state courts the opportunity
to consider them. The court notes only that it has difficulty determining how
the jury verdict and the court’s subsequent action in dismissing the lesser
included charge could have violated the Fourteenth Amendment, and it doubts
the petitioner could have prevailed on a Sixth or Fourteenth Amendment claim
regarding the court’s treatment of the jury note.
The court will dismiss the petition.
Certificate of Appealability
Under Rule 11(a) of the Rules Governing Section 2254 Cases, the court
must consider whether to issue a certificate of appealability. See also 28 U.S.C.
§2253(c)(1). This requirement exists because “[a] state prisoner whose petition
for a writ of habeas corpus is denied by a federal district court does not enjoy
an absolute right to appeal.” Buck v. Davis, ___ U.S. ___, 137 S. Ct. 759, 773
Case 2:18-cv-01453-PP Filed 01/06/21 Page 36 of 37 Document 21
(2017). This court may issue a certificate of appealability only if the petitioner
makes a substantial showing of the denial of a constitutional right. See 28
U.S.C. §2253(c)(2). The standard for making a “substantial showing” is whether
“reasonable jurists could debate whether (or, for that 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.”
Peterson v. Douma, 751 F.3d 524, 528 (7th Cir. 2014) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). The court declines to issue a certificate of
appealability because no reasonable jurist could debate the petitioner’s
The court GRANTS the respondent’s motion to dismiss petition for writ of
habeas corpus. Dkt. No. 16.
The court ORDERS that this case is DISMISSED. The clerk will enter
The court DECLINES to issue a certificate of appealability.
Dated in Milwaukee, Wisconsin this 6th day of January, 2021.
BY THE COURT:
HON. PAMELA PEPPER
Chief United States District Judge
Case 2:18-cv-01453-PP Filed 01/06/21 Page 37 of 37 Document 21
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