Dougan, Donald v. State of Wisconsin
Transmission of Notice of Appeal, Appeal Information Sheet, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 25 Notice of Appeal. (Attachments: # 1 Information sheet, # 2 Order, # 3 Judgment, # 4 Docket sheet) (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DONALD ALLAN RAY DOUGAN,
OPINION AND ORDER
WILLIAM POLLARD, Warden,
Waupun Correctional Institution,
State inmate Donald Allan Ray Dougan filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging a state court conviction. On August 3, 2012, the
court dismissed that petition, but granted Dougan leave to submit a supplement containing any
other proposed grounds for relief. Dougan has filed a proposed supplemental petition and
respondent has replied. For the reasons set forth below, the court will deny the supplemental
petition as well and dismiss this case with prejudice.
While the underlying facts have been set forth previously, a procedural overview is
necessary for purposes of addressing Dougan’s proposed grounds for relief. Dougan challenges
his state court conviction for repeated sexual assault of the same two children and possessing a
firearm as a felon. See State v. Dougan, St. Croix County Case No. 2002CF186. After a jury
found Dougan guilty as charged in all counts, the circuit court sentenced him to serve a total of
82 years in prison followed by a 43-year term of extended supervision.
After the circuit court denied Dougan’s motion for postconviction relief, he pursued a
direct appeal. During that appeal, Dougan argued that he was denied effective assistance of
counsel because his trial attorney failed to: (a) conduct an adequate cross-examination of a state
crime lab analyst; (b) seek pretrial dismissal of the felon-in-possession charge; (c) call Dougan’s
Minnesota probation agent to testify regarding reinstatement of his firearm privileges in that
state; (d) move to sever the felon-in-possession charge from the sexual assault charges; and (e)
hire a private investigator or pursue an alternate presentence investigation report. Dougan also
argued that his Fifth Amendment rights were violated when a probation officer conducted a
presentence interview without first reciting the warnings set out in Miranda v. Arizona, 384 U.S.
436, 467-68 (1966). Finally, Dougan argued that his sentence was unconstitutionally excessive.
The Wisconsin Court of Appeals rejected all of these arguments and affirmed his conviction on
all charges in an unpublished decision. See State v. Dougan, 2010 WI App 100, 327 Wis. 2d 797,
788 N.W.2d 383 (June 2, 2010).
Dougan then petitioned for review by the Wisconsin Supreme Court of the following
issues: (1) trial counsel was ineffective for failing to file a motion to dismiss the felon-inpossession charge; (2) the sentence of 82 years’ imprisonment was excessive; and (3) “cumulative
error” resulted from his defense counsel’s deficient failure to adequately cross-examine a state
crime lab analyst, sever the felon-in-possession count from the sexual-assault charges, and hire
a private investigator or prepare an alternative presentence investigation report. (Dkt. # 10,
Exh. F.) The Wisconsin Supreme Court summarily denied that petition, affirming the court of
appeals’ decision and Dougan’s conviction. See State v. Dougan, 2010 WI 125, 329 Wis. 2d 373,
791 N.W.2d 381 (Oct. 27, 2010).
On March 12, 2011, Dougan filed his original petition pursuant to 28 U.S.C. § 2254 in
this case, raising the following grounds for habeas corpus relief: (1) he was denied a speedy trial;
(2) his defense counsel was ineffective for having failed to object to a speedy trial violation; and
(3) the presentence investigator coerced his confession by lying to him about the investigation
process and by making false promises. Noting that Dougan raised none of these claims in state
court, the respondent answered with a motion to dismiss for failure to exhaust available state
court remedies as required by 28 U.S.C. § 2254(b) and argued that all three grounds were barred
from federal habeas review by the doctrine of procedural default.
In response, Dougan moved to withdraw grounds one and two, conceding that those
claims were unexhausted.
Dougan also requested leave to amend the petition to assert
additional grounds for relief. On August 3, 2012, the court granted Dougan’s motion to
withdraw his unexhausted claims (grounds one and two) before granting respondent’s motion
to dismiss the third ground for relief as barred by the doctrine of procedural default. Mindful
of the restriction on successive applications for habeas corpus relief, see 28 U.S.C. § 2244(b), the
court also granted Dougan’s request for leave to supplement his petition with any other,
exhausted claim he may wish to pursue in this case. (Dkt. # 19, at 7). The court specifically
instructed Dougan to list each proposed supplemental ground for relief and provide “a short
statement of supporting facts,” along with a showing that he had exhausted his state court
remedies with respect to those claims. (Id.).
Dougan subsequently filed a proposed supplement to his petition, along with several
exhibits. (Dkt. # 20). As respondent notes, Dougan did not comply with the court’s order to
provide a “short statement of supporting facts” for each proposed claim. Respondent contends,
therefore, that the supplemental petition should be summarily dismissed. In addressing any pro
se applicant’s petition, however, the court must read the allegations generously, reviewing them
under “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404
U.S. 519, 521 (1972); Perruquet v. Briley, 390 F.3d 505, 512-13 (7th Cir.2004) (explaining the
difference between cognizability and sufficiency of a habeas petition).
Construing Dougan’s proposed supplement under this lenient standard, he appears to
seek federal habeas corpus relief of the same issues that his appellate attorney presented on
direct appeal in his petition for review by the Wisconsin Supreme Court. Dougan also attempts
to raise two grounds that were raised on direct appeal, but not included in that petition for
review: (1) the felon-in-possession charge should not have been brought in the first place; and
(2) the probation officer who prepared the presentence information report failed to inform him
of his constitutional rights or give Miranda warnings before taking his statement. Even under
the generous standard that applies to pro se pleadings, Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts mandates dismissal if it plainly appears that
petitioner is not entitled to relief. As outlined below, Dougan’s supplemental petition must be
dismissed for failure to present a valid claim for federal habeas corpus relief.
I. Exhaustion and the Doctrine of Procedural Default
The court dismissed two of Dougan’s original three grounds for issuance of a writ of
habeas corpus because he failed to exhaust state court remedies in compliance with procedure.
(Dkt. # 19). As explained in that order, before a prisoner can seek a writ of habeas corpus in
federal court, he must first exhaust the remedies available to him in state court, 28 U.S.C.
§ 2254(b)(1)(A), “thereby giving the State the ‘opportunity to pass upon and correct’ alleged
violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting
Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (citation omitted)). Thus, a state
prisoner “must give the state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established appellate review process.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999).
To satisfy the exhaustion requirement, a “habeas petitioner must fully and fairly present
his federal claims to the state courts,” which requires the “petitioner to give state courts a
meaningful opportunity to pass upon the substance of the claims later presented in federal
court.” Anderson v. Benik, 471 F.3d 811, 814 (7th Cir. 2006). A petitioner is also required to
present his federal claims to the state courts in accordance with the state’s procedural
requirements so that the state courts have a meaningful opportunity to correct any mistakes. See
Martin v. Evans, 384 F.3d 848, 854 (7th Cir. 2004); Chambers v. McCaughtry, 264 F.3d 732,
737-38 (7th Cir. 2001). If the petitioner misses the opportunity to present a claim to the state
courts, then federal review of that claim is forfeited. See Lieberman v. Thomas, 505 F.3d 665, 669
(7th Cir. 2007).
A. Procedural Default of Miranda and Felon-in-Possession Claims
Here, the only claims that received one complete round of the state appeals process are
those outlined in the petition for review that Dougan’s appellate attorney filed with the
Wisconsin Supreme Court. See O’Sullivan, 526 U.S. at 845. Neither Dougan’s proposed claim
concerning the validity of the felon-in-possession charge, nor the probation officer’s failure to
inform him of his constitutional rights under Miranda, were not included in that petition. While
Dougan apparently sought to raise those claims later in a pro se petition to commence an original
action in May 2011, well after his initial petition for review was rejected by the Wisconsin
Supreme Court, Dougan was denied leave to proceed on January 24, 2012. See Dkt. # 20, Exh.
2 & 3 (Dougan v. Court of Appeals, Dist. III., No. 2011AP2524-OA). Dougan’s failure to preserve
these two claims in a procedurally proper manner constitutes a fatal default barring federal
habeas corpus review unless he demonstrates both “cause and prejudice” as a result of the
default.1 See Lieberman, 505 F.3d at 669. Cause for a default is ordinarily established by
showing that some type of “external impediment” prevented the petitioner from presenting his
claim. Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010) (quoting Lewis v. Sternes, 390 F.3d
1019, 1026 (7th Cir. 2004)). Prejudice is established by showing that the violation of the
petitioner’s federal rights “worked to his actual and substantial disadvantage, infecting his entire
trial with error of constitutional dimensions.” Id.
Dougan was represented by counsel during his direct appeal and this same attorney also
prepared his petition for review by the Wisconsin Supreme Court. Dkt. # 10, Exh. F. Dougan
does not suggest any cause for his default and the record does not disclose any. In that respect,
ineffective assistance of counsel can constitute cause for a procedural default, Martinez v. Ryan,
— U.S. —, 132 S. Ct. 1309, 1317 (2012), but Dougan does not raise such a claim here. Even
if cause were shown, Dougan cannot establish prejudice or demonstrate that a fundamental
miscarriage of justice has occurred with respect to either claim for reasons outlined briefly below.
B. The Miranda Claim
The Wisconsin Court of Appeals made short work of Dougan’s claim that a probation
A petitioner may also overcome a procedural default where he can demonstrate that
the failure to consider a claim will result in a “fundamental miscarriage of justice.” Promotor v.
Pollard, 628 F.3d 878, 887 (7th Cir. 2010) (citing Dretke v. Haley, 541 U.S. 386, 388 (2004)).
A fundamental miscarriage of justice will excuse a procedural default only in exceptional cases
where the petitioner presents proof of “[actual] innocence” such that, “in light of new evidence,
‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond
a reasonable doubt.’” House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513
U.S. 298, 319-322 (1995)). The petitioner in this case does not allege facts showing that he is
actually innocent or that this exception otherwise applies. Accordingly, the court will not
address this issue further.
officer violated his constitutional rights by conducting a pre-sentence interview without advising
him of his Miranda rights. The court of appeals noted that such warnings are only required
where “the interview ‘seeks statements from a defendant on an element upon which the State
still has the burden of proof.” Dougan, 2010 WI 100, ¶ 18 (quoting State v. Heffran, 129 Wis.
2d 145, 165, 384 N.W.2d 351 (1986)). Because Dougan’s guilt had already been decided by
a jury before the interview occurred, the court of appeals concluded that there was no
constitutional right to receive nor basis to give Miranda warnings. Dougan, 2010 WI 100, ¶ 18.
Moreover, a probation officer is not required to give Miranda warnings before conducting a
presentence interview.2 See Williams v. Chrans, 945 F.2d 926, 951 & n. 42 (7th Cir. 1991)
(collecting cases); see also United States v. Cortes, 922 F.2d 123, 127 (2d Cir. 1990) (same);
Fleming v. United States, No. 12-cv-1845, 2012 WL 3779066, *5 (N.D. Ill. 2012) (observing that
Miranda was not intended to apply to voluntary, non-adversarial presentence interviews
conducted by a neutral party such as a probation officer). Dougan offers no legal basis to
overturn this precedent, nor reason to believe that the Wisconsin Supreme Court would have
The Fifth Amendment guarantees that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” U.S. CONST . amend. 5. The privilege “generally
is not self-executing,” meaning that an individual who desires its protection “must [affirmatively]
claim it.” Salinas v. Texas, — U.S. —, 133 S. Ct. 2174, 2178 (2013) (quoting Minnesota v.
Murphy, 465 U.S. 420, 425 (1984) (citation omitted)). Because of the inherently coercive
nature of custodial interrogation, the decision in Miranda requires that the government put a
suspect on notice of the right to remain silent before taking an incriminating statement. 384
U.S. 436, 467-68 (1966). A failure to give Miranda warnings does not by itself violate the Fifth
Amendment. See Chavez v. Martinez, 538 U.S. 760, 766-70 (2003); Hanson v. Dane Cnty., Wis.,
608 F.3d 335, 339-40 (7th Cir. 2010). In particular, the failure to issue warnings does “not
abridge [the] constitutional privilege against compulsory self-incrimination, but depart[s] only
from the prophylactic standards later laid down by [the] Court in Miranda.” Michigan v. Tucker,
417 U.S. at 446 (1974). The government violates a defendant’s privilege against
self-incrimination only if it introduces an unwarned, involuntary statement into evidence in
pretrial or trial proceedings. See Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1026-27 (7th
Cir. 2006). Since neither occurred here, there was no constitutional violation. Hanson, 608 F.3d
ruled in his favor had this claim been properly presented in a petition for review to that court.
Thus, even if Dougan could surmount the procedural bar, his claim is without merit.
C. Unlawful Possession of a Firearm in Wisconsin
Dougan argues that his conviction for unlawful possession of a firearm as a felon should
also be set aside, because this right had been restored when he discharged a term of probation
imposed by the State of Minnesota. The court of appeals squarely rejected this claim after
finding that Dougan failed to comply with state procedure for the restoration of his rights to
The felony conviction forming the basis for Dougan’s felon-in-possession
charge was his 1984 Minnesota conviction for the fourth-degree sexual assault of
his thirteen-year-old cousin. According to the plea colloquy, Dougan admitted
touching his cousin on her breast in a sexual manner. Because under Wisconsin
law this conduct would constitute a felony, the Minnesota conviction was a
proper basis for Dougan’s felon-in-possession charge. See Wis. Stat. §
940.225(2)(e) (1983–84) . . . (defining second-degree sexual assault as “sexual
contact . . . with a person who is over the age of 12 years and under the age of 16
years”); § 940.225(5)(a) (defining sexual contact); see also Wis. Stat. §
941.29(1)(b) (prohibiting a person from possessing a firearm if he or she has been
convicted of a crime elsewhere that would be a felony if committed in this state).
Dougan argues that because the 1988 Minnesota probation-discharge
order for this crime stated he could possess a firearm after “[ten] years have
elapsed since restoration of civil rights,” he reacquired his right to possess firearms
in both Minnesota and Wisconsin in 1998. Citing federal case law, Dougan
contends the United States government must honor a state’s restoration of
firearm privileges. See United States v. Bost, 87 F.3d 1333 (D.C. Cir. 1996). We
are not persuaded by Dougan’s citation to case law from a foreign jurisdiction.
Wisconsin’s felon-in-possession statute specifies the methods of obtaining relief
from the prohibition against firearm possession. See Wis. Stat. § 941.29(5).
Neither of the specified methods were utilized here.
Dougan, 2010 WI App. 100, ¶¶ 10-11. Noting that Dougan’s Minnesota probation-discharge
order “did not remove the prohibition against firearm possession in Wisconsin,” the court of
appeals found Dougan remained ineligible to possess a firearm in this state. Id. at ¶¶ 11-12. The
court concluded, therefore, that Dougan’s argument was without merit. Id.
Dougan does not dispute that his prior conviction would be considered a felony if
committed in Wisconsin, meaning that he was prohibited from possessing a firearm pursuant
to Wis. Stat. § 941.29(1)(b) unless an exception applied. As the Wisconsin Court of Appeals
noted, Dougan did not fit within the specific statutory exception for individuals who have
obtained relief from a disability or prohibition against firearm possession. Such an exception
exists only in cases where a felon (a) has “received a pardon” for the crime or felony specified in
§ 941.29(1) and has been expressly authorized to possess a firearm; or (b) has obtained relief
from disabilities under 18 U.S.C. § 925©.3 Wis. Stat. § 941.29(5). Dougan neither alleges facts
showing that he was granted a pardon, nor that relief was granted in the manner specified in
§ 941.29(5), nor that any other recognized exception applies.
As a result, he failed to
demonstrate that his felon-in-possession conviction is invalid or that he would have prevailed
on this issue if it had been presented to the Wisconsin Supreme Court in a procedurally proper
manner. For this reason, his claim is procedurally barred. Alternatively, considering Dougan’s
Relief from a disability or restriction on possessing a firearm is available under this
statute only by application to the United States Attorney General:
A person who is prohibited from possessing, shipping, transporting, or receiving
firearms or ammunition may make application to the Attorney General for relief
from the disabilities imposed by Federal laws with respect to the acquisition,
receipt, transfer, shipment, transportation, or possession of firearms, and the
Attorney General may grant such relief if it is established to his satisfaction that
the circumstances regarding the disability, and the applicant’s record and
reputation, are such that the applicant will not be likely to act in a manner
dangerous to public safety and that the granting of the relief would not be
contrary to the public interest. . . . Whenever the Attorney General grants relief
to any person pursuant to this section he shall promptly publish in the Federal
Register notice of such action, together with the reasons therefor.
18 U.S.C. § 925(c).
claim de novo, this court concludes that he is not entitled to relief for the reasons set forth above.
II. Dougan’s Remaining Preserved Claims
The only remaining claims proposed by Dougan concern the length of his sentence and
whether he was denied effective assistance of counsel. Because these claims were rejected on
direct appeal by the Wisconsin Court of Appeals and then the Wisconsin Supreme Court, their
review under a petition for writ of habeas corpus is governed by the terms of the Antiterrorism
and Effective Death Penalty Act, codified at 28 U.S.C. § 2254(d), which “tightly constrains the
availability of the writ.” Winston v. Boatwright, 649 F.3d 618, 625 (7th Cir. 2011) (citing Stock
v. Rednour, 621 F.3d 644, 649 (7th Cir. 2010)). Indeed, the Supreme Court has emphasized
repeatedly that the standard of review found in § 2254(d) is exacting and highly deferential, Burt
v. Titlow, — U.S. —, 134 S. Ct. 10, 15 (2013), demanding that state courts be given “the benefit
of the doubt.” Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 786 (2011).
As a result, where a petitioner’s claims have been adjudicated on the merits in state court,
a federal habeas corpus court may grant relief only if the state court’s adjudication of the
prisoner’s claims “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1).4 To prevail, “a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
Likewise, a petitioner who challenges the factual basis for a state-court decision must
show that it “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). A state court’s findings of
fact are “presumed to be correct” for purposes of federal habeas corpus review unless a petitioner
refutes those findings with “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
fairminded disagreement.” Id. at 786-87. Moreover, a state court’s decision is deemed contrary
to clearly-established federal law if it reaches (1) a legal conclusion in direct conflict with a prior
decision of the Supreme Court or (2) a different conclusion than the Supreme Court based on
materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 404-08 (2000). None
of Dougan’s remaining claims surmount this deferential standard.
A. Excessive Sentences
A jury found Dougan guilty as charged in counts one and two of the indictment, which
alleged that he sexually assaulted two of his step-daughters on a repeated basis. The circuit court
imposed the maximum sentence allowed by law (40 years) on each count and ordered those
terms to be served consecutively. Each prison term included a consecutive 20-year term of
extended supervision. The circuit court added a consecutive two-year prison sentence for the
firearm-possession offense, followed by a three-year term of extended supervision. In total,
Dougan was sentenced to spend 82 years in state prison followed by a 43-year term of supervised
Dougan contends that his term of imprisonment is excessive and unduly harsh in relation
to the offense. He argues, therefore, that his sentence violates the Eighth Amendment, which
prohibits “cruel and unusual punishment.” The Wisconsin Court of Appeals rejected this same
argument after determining that the circuit court properly sentenced Dougan to the maximum
term allowed by state law:
The three primary factors that a sentencing court must address are: (1) the
gravity of the offense; (2) the character and rehabilitative needs of the offender;
and (3) the need for protection of the public. State v. Sarabia, 118 Wis.2d 655,
673, 348 N.W.2d 527 (1984). The weight to be given each of the primary factors
is within the discretion of the sentencing court and the sentence may be based on
any or all of the three primary factors after all relevant factors have been
considered. State v. Wickstrom, 118 Wis.2d 339, 355, 348 N.W.2d 183 (Ct. App.
In considering the required factors, a sentencing court can also consider
other relevant factors, including, but not limited to:
(1) Past record of criminal offenses; (2) history of undesirable
behavior pattern; (3) the defendant’s personality, character and
social traits; (4) result of presentence investigation; (5) vicious or
aggravated nature of the crime; (6) degree of the defendant’s
culpability; (7) defendant’s demeanor at trial; (8) defendant’s age,
educational background and employment record; (9) defendant’s
remorse, repentance and cooperativeness; (10) defendant’s need
for close rehabilitative control; (11) the rights of the public; and
(12) the length of pretrial detention.
State v. Gallion, 2004 WI 41, ¶ 43, 270 Wis.2d 535, 678 N.W.2d 197. When a
defendant argues that his or her sentence is unduly harsh or excessive, we will
hold that the sentencing court erroneously exercised its discretion “only where the
sentence is so excessive and unusual and so disproportionate to the offense
committed as to shock public sentiment and violate the judgment of reasonable
people concerning what is right and proper under the circumstances.” Ocanas v.
State, 70 Wis.2d 179, 185, 233 N.W.2d 457 (1975).
Here, the court considered the appropriate factors in imposing sentence,
noting that punishment and protection of the public were the factors it deemed
most important, especially given the gravity of the offenses. The court noted:
“[F]or the matters that you did to these girls, you must be punished and punished
in a serious fashion. This is the most serious of crimes happening to the most
vulnerable of victims by a person who should have and absolutely had to know
better.” The court expressed particular concern with Dougan’s process of
“grooming” his victims over the course of months and years.
With respect to Dougan’s character, the court noted Dougan had
exhibited no remorse for his crime and, based on a letter Dougan submitted
shortly before sentencing, the court concluded Dougan was merely begging for yet
another chance. The court acknowledged Dougan’s prior record and other
“examples of sexual deviancy” for which he was not prosecuted, which added up
to “a significant prior record ... that can’t be ignored.” Additionally, the court
considered rehabilitation as a sentencing objective, but noted “probation and
whatever counseling [Dougan] went through did not work” and should not be
extended in this case. With respect to deterrence as an objective of the sentence,
the court noted that given the nature of these particular crimes, it was not
convinced perpetrators read the newspaper to see what kind of sentences are
imposed on other perpetrators. Ultimately, the court stated:
[Y]ou have received the maximum that I believe I can give you for
the reasons I have stated. And for the appellate courts, it is the
maximum sentence because of the repeated nature of the counts
that you were convicted of, and because of your prior record,
because of the seriousness of the offense, because you lied on the
stand, because of [the letter sent to the court]. All of that and
more . . . . That’s why you got the max.
To the extent Dougan argues that given his age, his sentence is
tantamount to a life sentence, the court is not required to consider a defendant’s
life expectancy at sentencing. State v. Stenzel, 2004 WI App 181, ¶ 20, 276
Wis.2d 224, 688 N.W.2d 20. That the court imposed a sentence greater than the
recommendations made by the PSI writer and the prosecuting attorney likewise
fails to establish that the sentence was excessive. “As long as the trial judge
exercises discretion and sentences within the permissible range set by statute, the
court need not explain why its sentence differs from any particular
recommendation.” State v. Johnson, 158 Wis.2d 458, 469, 463 N.W.2d 352 (Ct.
App. 1990) (internal quotations omitted). Finally, although Dougan argues his
sentence is excessive when compared to the defendant in an unrelated case, the
trial court is not bound by the sentencing determination of the judge in that or
any other case. See Ocanas, 70 Wis.2d at 187-88, 233 N.W.2d 457. “[T]he
exercise of discretion dictates that different judges will have different opinions as
to what should be the proper sentence in a particular case.” Id. Because the court
considered the proper factors when imposing sentence, we conclude that it
properly exercised its sentencing discretion.
Dougan, 2010 WI App 100, ¶¶ 20-24. The Wisconsin Supreme Court agreed and denied
Dougan’s petition for review of his sentence.
The Eighth Amendment to the United States Constitution guarantees that “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments
inflicted.” U.S. CONST . amend. 8. As such, “[t]he Eighth Amendment bars not only those
punishments that are ‘barbaric,’ but also those that are ‘excessive’ in relation to the crime
committed.” Coker v. Georgia, 433 U.S. 584, 592 (1977). A sentence violates the Eighth
Amendment if it is extreme and “grossly disproportionate” to the crime. Solem v. Helm, 463 U.S.
277, 288 (1983); see also Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,
concurring) (quoting Solem).
The Supreme Court has emphasized that, “[o]utside the context of capital punishment,
successful challenges to the proportionality of particular sentences [will be] exceedingly rare,”
Solem, 463 U.S. at 290-91 (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1984)). Thus, in
determining whether a particular sentence is unduly severe, reviewing courts “should grant
substantial deference to the broad authority that legislatures necessarily possess in determining
the types and limits of punishments for crimes, as well as to the discretion that trial courts
possess in sentencing convicted criminals.” Id. at 290; see also Hutto v. Davis, 454 U.S. 370, 374
(1982) (per curiam). Where a non-capital conviction is at issue, “[punishment] that falls within
legislatively prescribed limits will not be considered disproportionate unless the sentencing judge
has abused his discretion.’” Henry v. Page, 223 F.3d 477, 482 (7th Cir. 2000) (quoting United
States v. Vasquez, 966 F.2d 254, 261 (7th Cir. 1992)).
In Wisconsin, one count of repeated sexual assault of the same child is a Class B felony
with a maximum sentence of sixty years.
See Wis. Stat. § 948.025(1)(2); Wis. Stat.
§ 939.50(3)(b) (2007-2008 edition). Dougan’s sentence (40 years in prison followed by 20
years of extended supervision on each count) was at the maximum range allowed, but within the
range prescribed by the Wisconsin legislature. Therefore, his sentence is not excessive per se.
Henry, 223 F.3d at 482.
Likewise, in affirming Dougan’s sentence, the Wisconsin Court of Appeals observed that
the circuit court weighed several factors, including the gravity of the offense and the vulnerability
of the victims. Any sexual assault is a reprehensible offense, particularly the sexual assault of a
child. See United States v. Gross, 437 F.3d 691, 694 (7th Cir. 2006) (finding that a defendant’s
convictions for sexual assault of a child “were serious and violent felonies,” which distinguished
him from the defendant whose sentence was found disproportionate in Solem). Indeed, “[t]he
impact of these crimes on the lives of the victims is extraordinarily severe.” Cacoperdo v.
Demosthenes, 37 F.3d 504, 508 (9th Cir. 1994); see also Rainville, Christina, Using Undiagnosed
Post-Traumatic Stress Disorder to Prove Your Case, CH ILD LAW PRACT . (August 2012) (noting that
“90% of children who are sexually assaulted develop PTSD, which is a severe and disabling
neurological response to trauma”). The fact that Dougan was convicted of repeatedly assaulting
his step-daughters made his offense infinitely more grave in the circuit court’s determination.
See Cacoperdo, 37 F.3d at 508 (rejecting an Eighth Amendment challenge where petitioner was
convicted of ten counts of sexually molesting his three teenaged stepdaughters and would not
be eligible for parole until he served at least forty years in prison). Based on this factor alone,
Dougan’s sentence was not so extreme as to be grossly disproportionate to the crime. Solem, 463
U.S. at 288.
Moreover, the record does not reflect that the circuit court considered any impermissible
factor in imposing the maximum term allowed by state law. Nor does Dougan allege facts
showing that the circuit court otherwise abused his discretion by imposing sentence in this
manner, nor that the court of appeals erred in upholding that sentence. More importantly,
because the Wisconsin Court of Appeals’ decision was consistent with the proportionality
analysis articulated by the Supreme Court in Solem, Dougan cannot establish that the opinion
was contrary to or an unreasonable application of clearly established precedent. Accordingly,
Dougan is not entitled to relief under 28 U.S.C. § 2254(d) on this claim.
B. Ineffective Assistance of Counsel
Dougan contends further that he is entitled to relief because he was denied his Sixth
Amendment right to effective assistance of counsel when his attorney failed to file a pretrial
motion to dismiss the felon-in-possession charges against him. Claims for ineffective assistance
of counsel are analyzed under the well-established standard set forth in Strickland v. Washington,
466 U.S. 668 (1984). To prevail under the Strickland standard, a criminal defendant must
demonstrate (1) a constitutionally deficient performance by counsel and (2) actual prejudice as
a result of the alleged deficiency. See Williams v. Taylor, 529 U.S. 390, 390-91 (2000). “Unless
a defendant makes both showings, it cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that rendered the result unreliable.” Strickland, 466 U.S. at
The first prong of this governing standard is only satisfied where the defendant shows
that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466
U.S. at 687. Moreover, scrutiny of counsel’s performance must be “highly deferential,” and a
reviewing court must make every effort “to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. at 689. To prove prejudice, a defendant must demonstrate
a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
Here, the Wisconsin Court of Appeals addressed Dougan’s claims of ineffective-assistance
under Strickland. See Dougan, 2010 WI App 10, ¶ 4. Because the Wisconsin Court of Appeals
identified the correct law, the central question is not whether this court “‘believes the state
court’s determination’ under the Strickland standard ‘was incorrect but whether the
determination was unreasonable — a substantially higher standard.’” Knowles v. Mirzayance, 556
U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 478 (2007)). Moreover,
“because the Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.” Knowles, 556 U.S. at
123. Thus, this court must be “doubly deferential” to the state court’s application of Strickland
on habeas corpus review. Id.; see also Richter, 131 S. Ct. at 788 (emphasizing that the standards
created by Strickland and § 2254(d) are “highly deferential,” and “‘doubly’ so” when applied in
tandem) (citations and quotations omitted). Said in other words, when a state prisoner seeks
to set aside a sentence due to ineffective assistance of counsel, federal habeas corpus courts are
required to “use a ‘doubly deferential’ standard of review that gives both the state court and the
defense attorney the benefit of the doubt.” Burt v. Titlow, — U.S. —, 134 S. Ct. 10, 15 (2013)
(quoting Cullen v. Pinholster, — U.S. —, 131 S. Ct. 1388, 1403 (2011)) (internal quotation
marks omitted). Dougan’s allegations of ineffective-assistance do not overcome this exceedingly
As noted, Dougan contends that his counsel was deficient for failing to file a pretrial
motion to dismiss the felon-in-possession charge against him. Dougan’s argument is based on
an assertion that his right to possess a firearm was restored by the trial court in Minnesota when
he discharged his term of probation in that state. For reasons outlined above, the Wisconsin
Court of Appeals rejected this same claim because Dougan had not attempted to comply with
the state statute that governs relief from a disability or restoration of the right to possess a
firearm in Wisconsin, where the offense occurred. See Dougan, WI App 100, ¶ 11 (citing Wis.
Stat. § 941.29(5)). Having found his underlying argument was meritless, the court of appeals
found that counsel was not deficient for failing to pursue that argument. Id. (citing State v.
Wheat, 2002 WI App 153, ¶ 14, 256 Wis. 2d 270, 647 N.W.2d 441 (counsel not deficient for
failing to pursue meritless claim)).
So, too, under federal law, counsel may not be deemed deficient for failing to file a
frivolous motion or raise an argument that lacks merit. Northern v. Boatwright, 594 F.3d 555,
561 (7th Cir. 2010); see also Fuller v. United States, 398 F.3d 644, 652 (2005) (“A lawyer shall
not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis
. . . for doing so that is not frivolous.”) (quoting Model Rules Of Prof’l Conduct R. 3.1.); Clark
v. Collins, 19 F.3d 959, 966 (5th Cir. 1994) (“Failure to raise meritless objections is not
ineffective lawyering; it is the very opposite.”). As the Seventh Circuit has previously explained,
a defense attorney has “no duty to make a frivolous argument; and there is a tactical reason not
to make weak arguments (and a fortiori frivolous ones, Evans v. Meyer, 742 F.2d 371, 374 (7th
Cir. 1984), which anyway are futile): they may distract the court from the strong arguments and
as a result make it less likely to rule in the defendant’s favor.” United States v. Rezin, 322 F.3d
443, 446 (7th Cir. 2003).
Dougan has not demonstrated that his defense counsel had, but failed to make, a
meritorious argument or that a pretrial motion to dismiss the felon-in-possession charge would
have been successful if one had been filed. As such, Dougan cannot demonstrate deficient
performance on his counsel’s part or actual prejudice due to his attorney’s decision. More
importantly, he does not show that the court of appeals’ decision was objectively unreasonable.
Accordingly, he is not entitled to relief on this claim.
C. Cumulative Error
Finally, Dougan claims entitlement to relief due to the combined effect of three failures
by his trial attorney: (a) adequately cross-examine a state crime lab analyst; (b) sever the firearm
charge from the sexual assault charges; and (c) hire a private investigator to prepare an
alternative presentence report. Dougan acknowledges that the Wisconsin Court of Appeals
rejected each of these allegations of ineffective-assistance, finding no deficient performance.
Nevertheless, Dougan maintains that his trial was tainted by this “cumulative error.”
To prevail on a claim of cumulative error in connection with a state criminal trial, a
habeas corpus petitioner must establish that: (1) the individual errors involved matters of
constitutional dimension rather than mere violations of state law; (2) the errors were not
procedurally defaulted for purposes of habeas corpus review; and (3) the errors “so infected the
entire trial that the resulting conviction violates due process.” Turner v. Quarterman, 481 F.3d
292, 301 (5th Cir. 2007) (citing Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992) (en
banc) (quoting Cupp v. Naughten, 414 U.S. 141, 146-49 (1973)); see also Alvarez v. Boyd, 225
F.3d 820, 824 (7th Cir. 2000) (requiring a petitioner must establish two elements: (1) at least
two errors were committed in the course of the trial; (2) considered together, along with the
entire record, the multiple errors so infected the jury’s deliberation that they denied the
petitioner a fundamentally fair trial).
Notably, the Wisconsin Court of Appeals rejected two of the alleged errors Dougan
identifies (failure to adequately cross-examine a state crime lab analyst and failure to investigate
or prepare an alternative presentence report) because he failed to articulate facts that would
arguably support a finding of deficient performance. Dougan, 2010 WI App 10, ¶¶ 7-9, 18. On
federal habeas corpus review, he simply repeats these same inadequately developed allegations.
In this circuit, unsupported suppositions and conclusory allegations “cannot carry the day” on
collateral review. Paters v. United States, 159 F.3d 1043, 1053 (7th Cir. 1998) (citing Prewitt v.
United States, 83 F.3d 812, 819-20 (7th Cir. 1996). In other words, conclusory statements like
the ones offered by petitioner here are “insufficient to obtain habeas relief.” Bintz v. Bertrand,
403 F.3d 859, 864 (7th Cir. 2005). Therefore, the court sees no reason to address these claims
With regard to Dougan’s only other claim (that the charges against him were improperly
joined for trial), he apparently believes that evidence of his prior conviction for sexual assault
of a child in Minnesota would not have been admitted into evidence during a trial on charges
that he sexually assaulted his step-daughters if the felon-in-possession charge had been severed.
Dougan, 2010 WI App 10, ¶ 13. After outlining the law governing the admissibility of “other
acts evidence,” the court of appeals held that counsel was not deficient for failing to request a
severence on this basis because the jury was going to learn of the Minnesota conviction
regardless whether the felon-in-possession charge was severed[.]” Id. at ¶¶ 13-16. Dougan does
not refute this decision, which is based on state evidentiary rules, nor does Dougan show that
a motion to sever would have been successful. Accordingly, these bare allegations are also
insufficient to establish deficient performance by counsel, much less entitlement to habeas relief.
Bintz, 403 F.3d at 864.
As this review shows, none of Dougan’s allegations describe error of constitutional
proportion nor indicate that his trial was fundamentally flawed due to the combined effect of
his counsel’s alleged errors. See Turner, 481 F.3d at 301; Alvarez, 225 F.3d at 824. Where
individual allegations of error are neither of constitutional stature nor even errors, there is
“nothing to cumulate.” Turner, 481 F.3d at 301 (citations omitted); see also Mullen v. Blackburn,
808 F.2d 1143, 1147 (5th Cir. 1987) (“Zero times twenty is still zero.”). Viewing counsel’s
performance under the doubly deferential standard that applies on habeas corpus review, Titlow,
134 S. Ct. at 15, Dougan has not shown that his counsel was constitutionally ineffective in
isolation or overall, nor has he demonstrated that his trial was so permeated with error that his
conviction violates due process. Therefore, Dougan cannot establish that cumulative error
requires habeas corpus relief.
III. Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue or deny
a certificate of appealability when entering a final order adverse to petitioner. To obtain a
certificate of appealability, the applicant must make a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 274, 282 (2004).
This means that “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.” Miller El v. Cockrell, 537 U.S. 322, 336
(2003) (internal quotations and citations omitted).
Although the rule allows a court to ask the parties to submit arguments on whether a
certificate should issue, it is not necessary to do so in this case because the question is not a close
one. For the reasons already stated above, petitioner has not made a showing, substantial or
otherwise, that his conviction was obtained in violation of clearly established federal law.
Because reasonable jurists would not debate whether a different result was required, no
certificate of appealability will issue.
IT IS ORDERED that:
Donald Allan Ray Dougan’s supplemental amended petition (dkt. # 20) is
DENIED and this case is DISMISSED with prejudice.
A certificate of appealability is DENIED. If petitioner wishes he may seek a
certificate from the court of appeals under Fed. R. App. 22.
Entered this 27th day of December, 2013.
BY THE COURT:
WILLIAM M. CONLEY
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