Rausch v. Eplett
Filing
23
ORDER signed by Judge J P Stadtmueller on 3/27/2024. Within 21 days, Petitioner to MOVE for a stay and abeyance or FILE an Amended Petition omitting Ground Two. See Order. (cc: all counsel)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JERAD D. RAUSCH,
Petitioner,
v.
CHERYL EPLETT,
Case No. 23-CV-309-JPS-JPS
ORDER
Respondent.
1.
INTRODUCTION
On March 7, 2023, Petitioner Jerad D. Rausch (“Petitioner”) filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No.
1. For the reasons discussed herein, the Court concludes that Ground Two
is unexhausted. The Court will therefore defer an analysis and disposition
on Ground One and will instruct Petitioner to, within twenty-one (21) days
of this Order, either (1) appropriately move for a stay and abeyance so that
he may attempt to return to the state courts to exhaust Ground Two, or (2)
file an amended petition omitting Ground Two.
2.
BACKGROUND
2.1
Charges
Petitioner’s § 2254 petition arises out of his criminal proceedings in
Calumet County Circuit Court Case No. 2017CF71.1 ECF No. 1 at 2. In April
See State of Wisconsin v. Jerad D. Rausch, No. 2017CF000071 (Calumet Cnty.
Cir.
Ct.
2017),
available
at
https://wcca.wicourts.gov/caseDetail.html?caseNo=2017CF000071&countyNo=8&
index=0 (last visited Mar. 27, 2024). The docket thereto is hereafter cited to as
2017CF71 Docket.
1
2017, Petitioner was charged with second degree sexual assault by use of
force, strangulation and suffocation, false imprisonment, and battery after
Petitioner’s ex-girlfriend, Cindy,2 reported to police that he battered, raped,
and strangled her. 2017CF71 Docket; ECF No. 1-4 at 2. Petitioner’s relevant
counsel for purposes of this petition was retained counsel, Attorney Eric
Eickhoff (“Attorney Eickhoff”). 2017CF71 Docket.
2.2
The Search and Pre-Trial Challenges
Roughly a month after being charged, police executed a search
warrant at Petitioner’s residence. ECF No. 1-4 at 3. The warrant authorized
the seizure of, inter alia, any cell phones in Petitioner’s possession. Id.
Investigators seized two cell phones in the search, both of which were
passcode protected. Id. Rausch was present at the time of the search and
provided the passcode to both devices. Id. Police made forensic copies of
the phone data, which data included incriminating text messages between
Petitioner and Cindy that were later used at trial. Id.
In September 2017, Petitioner entered a plea of not guilty. ECF No. 1
at 2; 2017CF71 Docket. In December 2017, Attorney Eickhoff unsuccessfully
moved to “exclude photos of alleged text messages.” 2017CF71 Docket. He
also unsuccessfully moved for an in camera inspection of Cindy’s
counseling records on the ground that they went to her credibility. ECF No.
1-4 at 3.
2.3
Trial and Postconviction Proceedings
Petitioner’s jury trial began in January 2018. 2017CF71 Docket. The
jury found Petitioner guilty on all counts. Id. Following sentencing,
The Wisconsin Court of Appeals, in its order affirming the judgment and
conviction, refers to the victim by a pseudonym, Cindy. ECF No. 1-4 at 2 n.1. For
consistency, the Court does the same.
2
Page 2 of 14
Petitioner moved for a new trial, arguing, inter alia, that Attorney Eickhoff
was constitutionally ineffective for failing to challenge the admissibility of
the evidence derived from the May 2017 search. ECF No. 1-4 at 3–4
(“Specifically, [Petitioner] asserted [that] the cell phone evidence was
obtained in violation of his right to counsel . . . .”); ECF No. 11-1.
The circuit court denied the motion, concluding that Petitioner had
“provided the passcode unprompted in response to a comment” made
between investigators about the phones being passcode-protected. ECF No.
1-4 at 4. “Because the passcodes were not derived from uncounseled
questioning,” the circuit court concluded that there was no Sixth
Amendment right to counsel violation and, therefore, Attorney Eickhoff
was not constitutionally ineffective for failing to challenge the admissibility
of the cell phone evidence on that basis. Id.
In response to this ruling, Petitioner filed a supplemental
postconviction motion arguing that the circuit court’s factual finding that
the investigators were merely commenting amongst themselves about the
passcodes was inconsistent with a sentence in one of the investigator’s
police reports regarding the search. Id. The sentence in the police report
read: “Special Inv. . . . then stated to [Petitioner], ‘Well, there’s a passcode
on the phone.’” Id. at 12. The circuit court held an evidentiary hearing; it
found the officers credible and found Petitioner not credible. Id. at 13, 11
n.8. The circuit court ultimately concluded that the sentence in the report
was inaccurate and that the investigator had, in fact, directed the comment
to his fellow investigator, not to Petitioner. Id. at 4.
The Court of Appeals affirmed. It conceded that it was “undisputed
that at the time of the search . . . , [Petitioner] had been charged, invoked his
right to counsel, and obtained an attorney,” such that his right to counsel
Page 3 of 14
had attached. Id. at 10. “[T]he pertinent inquiry here,” the court wrote, “is
whether [Petitioner] disclosed the cell phone passcode in response to
questioning by the officials executing the search warrant.” Id. at 11.
The Court of Appeals recounted the relevant events, as found by the
circuit court. One of the investigators informed his co-investigator that
“there was a passcode on the phone . . . .” Id. at 12. This surprised the coinvestigator since he had earlier been able to place the phone in airplane
mode. Id. at 11. That co-investigator turned to Petitioner and asked him
whether the phone was passcode protected. Id. at 12. Petitioner responded
in the negative, at which point the investigator turned to the co-investigator
and said, “[w]ell[,] there is a pass code on the phone.” Id. The circuit court
“specifically found this was a statement directed at [the co-investigator],
and not a question posed to [Petitioner].” Id. The circuit court then found
that Petitioner, unprompted, stated that if there was a passcode, it was
probably 544544. Id. The Wisconsin Court of Appeals concluded that
Petitioner had “not met his burden of establishing [that] the circuit court
erred” in making these factual findings. Id. at 13–14 (“[W]e have no basis to
second-guess the court’s credibility determination on this record . . . . Given
the circuit court’s factual findings here, we conclude that [the investigators]
did not deliberately elicit the phone passcodes from [Petitioner].”).
Petitioner,
through
post-conviction
counsel,
petitioned
the
Wisconsin Supreme Court for review. ECF No. 8-4. The petition states that
“[t]he question presented for review is whether the investigators’ questions
violated [Petitioner’s] Sixth Amendment right to counsel.” Id. at 5. The
petition at no point references the right to effective assistance of counsel. In
September 2022, the Wisconsin Supreme Court denied the petition without
opinion. ECF No. 1-5.
Page 4 of 14
In March 2023, Petitioner filed the instant petition for a writ of
habeas corpus under 28 U.S.C. § 2254. ECF No. 1. He therein raises two
grounds for relief: first, that investigators violated his Sixth Amendment
right to counsel by questioning him about the existence of passcodes on the
cell phones after he had already been charged, appeared in court, and
obtained legal representation (“Ground One”); second, that Petitioner’s
Sixth Amendment right to effective assistance of counsel was violated when
Attorney Eickhoff failed to raise or argue investigators’ above-discussed
alleged violation of Petitioner’s Sixth Amendment right to counsel
(“Ground Two”).
3.
LAW AND ANALYSIS3
In Ground Two, Petitioner contends that his Sixth Amendment right
to effective assistance of counsel was violated when Attorney Eickhoff
failed to raise or argue investigators’ above-discussed alleged violation of
Petitioner’s Sixth Amendment right to counsel. Said otherwise, Petitioner
asserts in Ground Two that Attorney Eickhoff was constitutionally
ineffective for failing to move to suppress the fruits of investigators’
interaction with Petitioner about the existence of passcodes on the cell
phones (i.e., the incriminating text messages) on the ground that the
interaction violated Petitioner’s Sixth Amendment right to counsel.
Respondent argues that Ground Two is subject to dismissal because
Petitioner failed to properly raise it before the Wisconsin Supreme Court.
ECF No. 19 at 2. In response, Petitioner contends that he fairly presented
Ground One to the Wisconsin Supreme Court notwithstanding his failures
As noted supra Section 1, the Court concludes that Ground Two is
unexhausted and therefore defers analysis and disposition of Ground One.
3
Page 5 of 14
to use the word “ineffective” or cite to Strickland v. Washington, 466 U.S. 668
(1984) in his petition for review. ECF No. 22 at 4–5. For the reasons
discussed herein, the Court concludes that Petitioner failed to fairly present
his ineffective assistance of counsel claim to the Wisconsin Supreme Court.
Accordingly, Ground Two is unexhausted.
A district court may not address grounds raised in a habeas petition
“unless the state courts have had a full and fair opportunity to review
them.” Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991) (citing United States
ex rel. Simmons v. Gramley, 915 F.2d 1128, 1131–32 (7th Cir. 1990)). A
petitioner exhausts his claim when he presents it to the highest state court
for a ruling on the merits. Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir.
2007) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)); Perruquet v. Briley,
390 F.3d 505, 513 (7th Cir. 2004). “A federal habeas corpus petitioner has
‘fairly presented’ a claim to a state court if he has clearly informed the state
court of the factual basis of that claim and has argued to the state court that
those facts constituted a violation of the petitioner’s federal constitution
rights” “such that ‘the state court was sufficiently alerted to the federal
constitutional nature of the issue to permit it to resolve the issue on that
basis.’” Toney v. Franzen, 687 F.2d 1016, 1021 (7th Cir. 1982) (citing Klein v.
Harris, 667 F.2d 274, 282 (2d Cir. 1981) and Moore v. Duckworth, 581 F.2d 639,
642–45 (7th Cir. 19978), aff’d, 443 U.S. 713 (1979)); Hicks v. Hepp, 871 F.3d 513,
530 (7th Cir. 2017) (quoting McDowell v. Lemke, 737 F.3d 476, 482 (7th Cir.
2013)). “This analysis typically focuses on four factors”:
(1) whether the habeas petitioner relied on federal cases that
engage in constitutional analysis, (2) whether the petitioner
relied on state cases that apply constitutional analysis to
similar facts, (3) whether the petitioner framed the claims in
terms so particular as to call to mind a specific constitutional
Page 6 of 14
right, and (4) whether the petition alleges a pattern of facts
with the mainstream of constitutional litigation.
McDowell, 737 F.3d at 482 (citing Ellsworth v. Levenhagen, 248 F.3d 634, 639
(7th Cir. 2001)).
General appeals before the state courts to broad constitutional
principles, such as due process, equal protection, and the right to a fair trial,
are insufficient to establish exhaustion. Gray v. Netherland, 518 U.S. 152, 162
(1996). However, it is sufficient for exhaustion purposes if the “‘substantial
equivalent’ or ‘substance’ of the federal habeas corpus claim has been
presented.” Toney, 687 F.2d at 1022 (citing Picard, 404 U.S. at 275). “Concerns
of federal-state comity, however, favor a cautious application of this test.”
Id. (citing Johnson v. Metz, 609 F.2d 1052, 1054 (2d Cir. 1979)).
Petitioner’s petition to the Wisconsin Supreme Court makes no
mention whatsoever of a defendant’s right to effective assistance of counsel
as a general matter, let alone to Petitioner’s own individual right to effective
assistance of counsel. It cites neither to Strickland nor to any other relevant
case, state or federal, for an ineffective-assistance-of-counsel-related
proposition. See Baldwin v. Reese, 541 U.S. 27, 33 (2004) (“The petition
provides no citation of any case that might have alerted the court to the
federal ineffective assistance of counsel claim.”). And even if Petitioner had
cited Strickland, that still wouldn’t have been enough; he needed to further
describe “how his counsel failed him in order to alert the . . . judge . . . of the
specific grounds for relief under § 2254.” McGhee v. Watson, 900 F.3d 849,
853 (7th Cir. 2018) (“Simply citing Strickland is not enough.”).
The petition framed the issue for review as one purely of whether
investigators violated Petitioner’s Sixth Amendment right to counsel when
they interacted with him regarding the cell phones’ passcodes. The
Page 7 of 14
petition’s recitation of the underlying facts supports that conclusion; it did
not discuss Attorney Eickhoff’s litigation efforts or lack thereof, apart from
noting for purposes of the Sixth Amendment right to counsel analysis that
Attorney Eickhoff was, in fact, representing Petitioner by the time
investigators searched Petitioner’s residence. See Baldwin, 541 U.S. at 33
(“[T]he petition does not even contain a factual description supporting the”
ineffective assistance of counsel claim) (citing Gray, 518 U.S. at 163 and
Duncan v. Henry, 513 U.S. 364, 366 (1995)). The petition did not allege any
prejudice to Petitioner on the part of Attorney Eickhoff. It did not recount
that the lower courts had addressed any ineffective assistance of counsel
claim at all; but even if it had, this too would have been, on its own,
insufficient since habeas does not require that state supreme court justices
“must read the lower court opinions” to discover the federal claim. Baldwin,
541 U.S. at 31; see also Promotor v. Pollard, 628 F.3d 878, 889 (7th Cir. 2010)
(“Appending a prior court’s decision without developing an independent
position does not allow meaningful review of the substance of the claims.”).
Petitioner argues that his presentation of the Sixth Amendment right
to counsel issue relating to investigators’ interaction with Petitioner at the
time of the search suffices for exhaustion of the ineffective assistance of
counsel claim because presentation of the former issue was a “necessary
predicate” for presentation of the latter. ECF No. 22 at 5. This is so,
Petitioner’s argument goes, because Attorney Eickhoff could not be deemed
ineffective for failing to move to suppress based on an alleged Sixth
Amendment violation if there was not, in fact, a Sixth Amendment
violation. Id. at 3 (“[T]he primary issue . . . was whether investigators’
questioning violated [Petitioner’s] Sixth Amendment right to counsel . . . .
A secondary issue to the primary issue was whether trial counsel was
Page 8 of 14
ineffective for failing to bring a motion to suppress the fruits of the
improper questioning.”). But this argument fails because “an assertion that
one’s counsel was ineffective for failing to pursue particular constitutional
issues is a claim separate and independent of those issues.” Lewis v. Sternes,
390 F.3d 1019, 1026 (7th Cir. 2004). Certainly the Sixth Amendment right to
counsel issue was a predicate of the ineffective assistance of counsel issue
in the sense that Attorney Eickhoff could not be deemed constitutionally
ineffective for failing to bring a motion to suppress that was not likely to be
meritorious. But that predicate issue of whether the underlying substantive
constitutional violation in fact occurred, or at least arguably occurred, is
only part of what is relevant and necessary to demonstrate ineffective
assistance of counsel.
As the State noted in its response to the petition to the Wisconsin
Supreme Court, “[Petitioner] presents his Sixth Amendment claim as if it
were before this Court on the merits,” notwithstanding that Petitioner had
raised it to the lower courts “as an ineffective assistance of counsel claim.”
ECF No. 8-4 at 24 n.2. For that reason, the State, presumably in an exercise
of thoroughness and in an abundance of caution, analyzed the ineffective
assistance of counsel issue that Petitioner himself failed to raise. Id. at 28.
But the State’s unilateral analysis of the ineffective assistance of counsel
issue in its response is insufficient for Petitioner’s exhaustion purposes.
That the ground for relief sought to be reviewed is conceivably discernable
from other portions of the record is insufficient—the petitioner himself
must present it to the court. See McGhee, 900 F.3d at 854.
If Petitioner had proceeded pro se before the state courts, his petition
would be entitled to a liberal construction. McDowell, 737 F.3d at 482 (citing
Ward v. Jenkins, 613 F.3d 692, 697 (7th Cir. 2010)). But he did not; he was
Page 9 of 14
represented by postconviction counsel, and so his petition receives no such
liberal construction. This further supports the conclusion that Petitioner
failed to fairly present his ineffective assistance of counsel claim to the
Wisconsin Supreme Court.
For all these reasons, the Court concludes that Petitioner failed to
fairly present Ground Two to the Wisconsin Supreme Court for a ruling on
its merits. Ground Two is therefore unexhausted and cannot, at least at this
juncture, be reviewed on its merits by this Court.
It is true that in some instances in which the petitioner has failed to
exhaust his state remedies, his petition may be “dismissed without
prejudice so that he may . . . be given the proper opportunity to address the
claim in the first instance.” United States ex rel. James v. O’Leary, No. 89 C
7916, 1990 U.S. Dist. LEXIS 7265, at *9 (N.D. Ill. June 13, 1990). This is only
so, however, “[w]here state remedies remain available to” the petitioner.
Perruquet, 390 F.3d at 514; see also O’Leary, 1990 U.S. Dist. LEXIS 7265, at *10
(if “it is clear that it would be futile to send the petitioner back to state court
via a failure to exhaust because [the state court] would simply find the claim
to have been procedurally defaulted,” then “the federal court will generally
apply the state procedural default rule itself and dismiss the petition with
prejudice”) (citing Harris v. Reed, 489 U.S. 255, 1046–47 (1989) (O’Connor, J.,
concurring)). If the petitioner’s opportunity to raise an unexhausted ground
for relief in state court has passed, then the petitioner has procedurally
defaulted that claim. Perruquet, 390 F.3d at 514.
Respondent asserts that Wisconsin courts would deem Ground Two
“procedurally barred because [Petitioner] could not start the process of
presenting the claim through another round of review in the state courts
after already presenting it in the trial court and court of appeals.” ECF No.
Page 10 of 14
19 at 13 (citing State v. Witkowski, 473 N.W.2d 512, 514 (Wis. Ct. App. 1991)).
But it is not clear to the Court that this is necessarily so.
“After a conviction in a Wisconsin trial court, a defendant’s first
avenue of relief is a postconviction motion under [Wis. Stat.] § 974.02.” Page
v. Frank, 343 F.3d 901, 905 (7th Cir. 2003). “The defendant must alert the trial
court that a postconviction motion is coming by filing, within twenty days
of sentencing, a notice of intent to pursue postconviction relief.” Carter v.
Buesgen, 10 F.4th 715, 717 (7th Cir. 2021) (citing Wis. Stat. § 809.30(2)(b)).
Petitioner appears to have done so. 2017CF71 Docket (notice of intent to
pursue post-conviction relief docketed April 2, 2018 following March 16,
2018 sentencing). “The motion, like the original notice of intent, must be
filed in the trial court.” Carter, 10 F.4th at 717. “This requirement affords the
trial court . . . an opportunity to consider any appellate challenge in the first
instance.” Id. It “operates as a prerequisite to accessing the state’s direct
appeal process.” Id. at 718 (citing Morales v. Boatwright, 580 F.3d 653, 656
(7th Cir. 2009) and Page, 343 F.3d at 906).
An ineffective assistance of counsel claim “must first be brought in a
§ 974.02 motion,” or else it is deemed waived on appeal. Page, 343 F.3d at
906 (citing State v. Waites, 462 N.W.2d 206, 213 (Wis. 1990); State ex rel.
Rothering v. McCaughtry, 556 N.W.2d 136, 137 (Wis. Ct. App. 1996); and State
v. Hayes, 481 N.W.2d 699, 700 (Wis. Ct. App. 1992)). Thereafter, once the
time for moving “under § 972.02 and for taking the subsequent direct
appeal have expired, the defendant has the option of seeking a collateral
attack on the judgment under Wis. Stat. § 974.06.” Page, 343 F.3d at 906;
Carter, 10 F.4th at 718 (“Down the road, after ‘the time for appeal or
postconviction remedy provided in § 974.02 has expired,’ the defendant
may collaterally attack his sentence.”) (citing Wis. Stat. § 974.06(1)).
Page 11 of 14
From what the Court can discern from the 2017CF71 Docket, as well
as from Petitioner’s representation that he filed no “other state petitions,
applications, or motions concerning” his conviction, ECF No. 1 at 4,
Petitioner could still hypothetically, at the very least, attempt to exhaust
Ground Two through the filing of a § 974.06 motion. Such a motion can be
“made at any time.” § 974.06(2). Whether such an attempt at collateral state
postconviction relief has any likelihood of being meritorious is unclear; the
Court makes no comment on that question. In other words, it is not obvious
that it would be futile, or that the state courts would certainly find the claim
procedurally defaulted. See O’Leary, 1990 U.S. Dist. LEXIS 7265, at *10
(citing Harris, 489 U.S. at 1046–47).
In the absence of that clarity, the Court concludes that Ground Two
is unexhausted, but it declines to decide with any certainty at this juncture
whether it is also procedurally defaulted. Petitioner is therefore left with
two options: first, he may move the Court for a stay and abeyance to allow
him to attempt to go back before the state courts to properly exhaust
Ground Two; alternatively, he may conclude that the former option is
unlikely to be meritorious and he may instead file an amended petition that
omits Ground Two and proffers only Ground One. In any event, the Court
cannot adjudicate a mixed petition—one containing both exhausted and
unexhausted grounds for relief. Lisle v. Pierce, 832 F.3d 778, 785 (7th Cir.
2016) (“[T]he presence of even one unexhausted claim in a federal petition
can prevent a federal court from reviewing the petition, even as to
exhausted claims.”) (citing Rhines v. Weber, 544 U.S. 269, 275 (2005) and Rose
v. Lundy, 455 U.S. 509, 522 (1982)); Rhines, 544 U.S. at 275–76 (under “the
‘stay-and-abeyance’ procedure, . . . rather than dismiss the mixed
petition . . . , a district court might stay the petition and hold it in abeyance
Page 12 of 14
while the petitioner returns to state court to exhaust his previously
unexhausted claims. Once the petitioner exhausts his state remedies, the
district court will lift the stay and allow the petitioner to proceed in federal
court”).
It is not entirely clear at this juncture whether the former option is
appropriate. “[S]tay and abeyance should be available only in limited
circumstances.” Rhines, 544 U.S. at 277. It is “only appropriate when the
district court determines there was good cause for the petitioner’s failure to
exhaust his claims first in state court.” Id. “[I]f the petitioner had good cause
for his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics,” then “the district court should
stay . . . .” Id. at 278 (citing Lundy, 455 U.S. at 522). Should Petitioner elect to
seek a stay and abeyance, therefore, he must convince the Court that such
a course of action would be appropriate and not an abuse of the Court’s
discretion.
4.
CONCLUSION
Having concluded that Ground Two is unexhausted but having
declined to determine definitively whether it is procedurally defaulted, the
Court defers analysis and disposition on Ground One and instructs
Petitioner that he must, within twenty-one (21) days of this Order, either
(1) appropriately move for a stay and abeyance for purposes of attempting
to exhaust Ground Two, or (2) file an amended petition omitting Ground
Two.
Accordingly,
IT IS ORDERED that Petitioner Jerad. D. Rausch shall, within
twenty-one (21) days of this Order, either (1) appropriately move for a stay
Page 13 of 14
and abeyance, or (2) file an amended petition omitting Ground Two, as
discussed herein.
Dated at Milwaukee, Wisconsin, this 27th day of March, 2024.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
Page 14 of 14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?