Lamar, Charles v. Tegels, Lizzie

Filing 12

ORDER that respondent Lizzie Tegels may have until December 8, 2014 to submit a supplemental brief regarding petitioner Charles Lamar's exhaustion of his claim that his sentence for aggravated battery violated his double jeopardy rights by punishing him in excess of the maximum allowable term of incarceration. Petitioner may have until December 22, 2014 to submit his response. Signed by District Judge James D. Peterson on 11/24/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

CHARLES LAMAR,

OPINION and ORDER
Petitioner,

v.

12-cv-697-jdp 1

LIZZIE TEGELS,
Respondent.

Petitioner Charles Lamar is in custody of the Wisconsin Department of Corrections at
the Jackson Correctional Institution, located in Black River Falls, Wisconsin. Petitioner was
originally given concurrent sentences on one count of aggravated battery and one count of
bail jumping, but after he was allowed to withdraw his plea on the aggravated battery count
and come to a new plea agreement on that charge, his new, maximum sentence for aggravated
battery was ordered to be served consecutively to the bail jumping sentence. His request for
sentence credit on the aggravated battery charge for some of the time he spent serving the
original, concurrent sentences was denied.
Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing
that the state court violated the double jeopardy clause in two ways: (1) by failing to give him
sentence credit on the aggravated battery charge for prison time already served on his
original, concurrent sentence; and (2) by sentencing him to more than the maximum
punishment allowed under the Wisconsin statutes. However, because my review of the state
court record shows that petitioner appears to have failed to exhaust the second issue in his
1

This case was reassigned to me pursuant to a May 16, 2014 administrative order. Dkt. 10.

appeals to the Wisconsin Court of Appeals and Wisconsin Supreme Court, I conclude that it
is appropriate to require the parties to submit supplemental briefing on how to proceed.

FACTS
The following facts are drawn from the petition and state court records. Petitioner
challenges the conviction and sentence that he received in Milwaukee County case no.
06CF1688. Petitioner was originally charged in that case with one count of felony aggravated
battery and two counts of misdemeanor bail jumping, all as a habitual offender, for beating
his girlfriend. Pursuant to a plea agreement, petitioner pleaded guilty to the aggravated
battery charge and one count of misdemeanor bail jumping, both as a habitual offender. On
September 15, 2006, Judge Jeffrey A. Conen accepted petitioner’s guilty plea and sentenced
him to 12 years of initial confinement and five years of extended supervision on the
aggravated battery count and one year of initial confinement and one year of extended
supervision on the bail jumping count. The sentences were made concurrent with each other
and petitioner was granted 177 days of credit (from March 23, 2006—the date of his arrest—
to September 15, 2006). Pursuant to the plea agreement, the second count of misdemeanor
bail jumping was dismissed.
On March 23, 2007, petitioner completed the initial confinement portion of the bailjumping charge. In July 2007, petitioner filed a motion to withdraw his plea on the
aggravated battery charge, arguing that the court erroneously informed petitioner that the
maximum penalty for aggravated battery as a habitual offender was 19 years rather than 21
years. On August 29, 2007, Judge Conen granted the motion. He also reinstated the second,
earlier-dismissed, count of bail jumping as a habitual offender.
2

After further negotiation, petitioner and the state entered into a new plea agreement,
under which petitioner pleaded guilty to aggravated battery and the second bail jumping
charge (this time, neither of the charges carried the habitual offender enhancement). After
taking the plea on November 6, 2007, Judge Conen recused himself and the matter was
assigned to Judge Clare Fiorenza for resentencing. On January 3, 2008, Judge Fiorenza
sentenced petitioner to the maximum term available, ten years of initial confinement and five
years of extended supervision on the aggravated battery charge, and nine months of
confinement on the bail jumping charge. 2 These sentences were to be served concurrently to
each other but consecutive to the sentence for the first bail jumping charge. Judge Fiorenza
granted petitioner 306 days of sentence credit for time spent in confinement between the
March 23, 2007 end of initial confinement on the first bail jumping charge and the January
3, 2008 resentencing. 3
In July 2008, petitioner filed a motion seeking additional sentence credit for time
served on the original aggravated battery as a habitual offender charge—the 189-day period
from September 15, 2006 (the date of his original sentencing) to March 23, 2007. Judge
Fiorenza denied that motion, stating that the lack of credit for this time was proper under
Wisconsin sentencing law. Petitioner appealed, arguing that the denial of credit violated both
Wisconsin law and the double jeopardy clause. On August 11, 2009, the Wisconsin Court of

2

Petitioner’s aggravated battery conviction pursuant to Wis. Stat. § 940.19(5) is a Class E
felony carrying a maximum penalty of “a fine not to exceed $50,000 or imprisonment not to
exceed 15 years, or both.” See Wis. Stat. § 939.50(3)(e); see also Dkt. 6, Exh. A-1 (petitioner’s
amended judgment of conviction).
3

As the Wisconsin Supreme Court points out, the circuit court erred in granting 306 days of
sentence credit for this time period, which was only 286 days. However, this miscalculation is
irrelevant to the issues in this case.
3

Appeals affirmed the circuit court’s decision. Petitioner’s appeal to the Wisconsin Supreme
Court was denied in a June 29, 2011 opinion. Petitioner then filed this habeas petition.

ANALYSIS
As stated above, petitioner argues that the state court violated his double jeopardy
rights in two ways: (1) by failing to give him sentence credit on the aggravated battery charge
for prison time already served on his original, concurrent sentence; and (2) by sentencing him
to more than the maximum punishment allowed under the Wisconsin statutes. 4
However, my review of the state court record shows that petitioner appears to have
raised only the first issue in his appeal to the Wisconsin Court of Appeals and then to the
Wisconsin Supreme Court. He did not raise the issue of his sentence exceeding the maximum
allowable punishment until his brief-in-chief in this habeas action. 5
Before a prisoner can seek relief 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)). To satisfy the doctrine of exhaustion, a state prisoner “must
give the state courts one full opportunity to resolve any constitutional issues by invoking one

4

See, e.g., Faye v. Gray, 541 F.2d 665, 667 (7th Cir. 1976) (“a failure to credit violates the
guarantee against double jeopardy when the pre-sentence time together with the sentence
imposed is greater than the statutory maximum penalty for the offense”).
5

In her answer, respondent states that petitioner “has exhausted all available state court
remedies with respect to the double jeopardy claim presented,” Dkt. 6 at 2, but petitioner
had not yet raised his argument that his sentence exceeded the maximum allowable
punishment.
4

complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999). In addition, the prisoner must present his federal claims in compliance
with state procedure. See Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004); Cheeks v.
Gaetz, 571 F.3d 680, 685 (7th Cir. 2009) (“A habeas petitioner who has exhausted his state
court remedies without properly asserting his federal claim at each level of state court review
has procedurally defaulted that claim.”).
Generally, this court cannot entertain a “mixed petition,” containing both exhausted
and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 510 (1982); Perruquet, 390 F.3d at
514. Although the exhaustion defense can be waived and petitioner did not raise the
exhaustion issue in her response brief, waiver on this issue occurs only when the state
“expressly waives the requirement.” 28 U.S.C. § 2254(b)(3). Therefore, I conclude that
supplemental briefing on the exhaustion issue is appropriate.
I will give respondent a chance to explain whether she seeks dismissal of petitioner’s
second claim on exhaustion grounds or expressly waives an exhaustion argument. Petitioner
will be given a chance to respond to respondent’s position. In doing so, petitioner should
explain how he would like this case to proceed if I ultimately determine that his second claim
must be dismissed. In that case, petitioner would have the choice to (1) pursue his
unexhausted claims in state court; or (2) amend his petition to delete the unexhausted claims
and proceed solely on the exhausted claims.

5

ORDER
IT IS ORDERED that respondent Lizzie Tegels may have until December 8, 2014 to
submit a supplemental brief regarding petitioner Charles Lamar’s exhaustion of his claim that
his sentence for aggravated battery violated his double jeopardy rights by punishing him in
excess of the maximum allowable term of incarceration. Petitioner may have until December
22, 2014 to submit his response.
Entered this 24th day of November, 2014.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge

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