Roberts, Kenneth v. McCulloch, Deb

Filing 2

ORDER that petitioner Kenneth A. Roberts is directed to show cause, if any, by responding in writing within thirty (30) days of the date of this order-that is, by August 22, 2013, why his petition should not be dismissed as barred by the doctrine of procedural default. Signed by Magistrate Judge Stephen L. Crocker on 7/23/2013. (jef),(ps)

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

KENNETH A. ROBERTS,
Petitioner,

OPINION AND ORDER

v.
13-cv-446-wmc
DEBORAH McCULLOCH,
Respondent.

Petitioner Kenneth A. Roberts is in custody of the Wisconsin Department of Health
Services at the Sand Ridge Secure Treatment Center in Mauston. Invoking 28 U.S.C. § 2254,
Roberts seeks a writ of habeas corpus under to challenge his continued civil commitment as a
“sexually violent person” pursuant to Wis. Stat. ch. 980. Roberts has paid the five dollar filing
fee and this case is now pending before the court on preliminary review under Rule 4 of the
Rules Governing Section 2254 Cases in the United States District Courts.

FACTS
Preliminary review of the petition shows that Roberts is confined at Sand Ridge pursuant
to a June 2005 state court judgment and civil commitment order entered in the Circuit Court
for Oneida County. In January 2010, Roberts filed a “petition for discharge” pursuant to Wis.
Stat. § 980.09, arguing that he no longer met the criteria for continued confinement because his
risk of recidivism was low. After considering argument from both sides, the circuit court denied
Roberts’s petition without a full discharge hearing because: (1) a December 2009 evaluation
found that Roberts’s risk of recidivism was “high”; and (2) Roberts did not offer any expert
opinion to the contrary.

On direct appeal, Roberts argued that the circuit court erred by denying the petition
without a full hearing pursuant to Wis. Stat. 980.09(1) and State v. Arends, 2010 WI 46, 325
Wis. 2d 1, 784 N.W.2d 513. The Wisconsin Court of Appeals affirmed the circuit court’s
decision on October 11, 2012, see In re Commitment of Roberts, 2012 WI App 132, 345 Wis. 2d
62, 823 N.W.2d 840, and the Wisconsin Supreme Court denied his petition for review on
February 11, 2013, see State v. Roberts, 2013 WI 22, 346 Wis. 2d 285, 827 N.W.2d 375.
Roberts now seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. In a
petition that is dated June 21, 2013, Roberts argues that the circuit court violated his
constitutional right to “substantive and procedural due process” by denying his petition without
a full discharge hearing. It appears from the appellate court’s opinion that Roberts did not raise
a federal due process claim in state court. This means that he failed to exhaust state court
remedies as required before seeking federal habeas review and that review may be barred for
procedural reasons set forth briefly below.

OPINION
The federal habeas corpus statutes authorize relief only if the petitioner has exhausted
all available state remedies. See 28 U.S.C. 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838,
848 (1999). The doctrine of exhaustion requires a habeas corpus petitioner to “fully and fairly
present” his claims in such a way as to give state appellate courts a meaningful opportunity to
consider the substance of those claims and correct any mistakes. Picard v. Connor, 404 U.S. 270,
275 (1971); Curtis v. Montgomery, 552 F.3d 578, 582 (7th Cir. 2009) (citations omitted). To
“fully” present his claims, a petitioner must pursue all available avenues of relief and comply with

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the state’s procedural requirements before turning to the federal courts. To “fairly” present his
claims, a petitioner must provide the state and federal courts with the same operative facts and
controlling legal principles. Picard, 404 U.S. at 277.
It appears that Roberts did not raise an issue in state court regarding whether the circuit
court’s decision violated his right to substantive and procedural due process as guaranteed by the
Fourteenth Amendment to the United States Constitution. By failing to present these legal
theories in state court, Roberts did not exhaust available state court remedies when he had a
chance to do so.
A habeas petitioner who misses an opportunity to properly present a claim in state court
commits a procedural default that may forfeit federal review of that claim. Curtis, 552 F.3d at
582 (citing Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir. 2007)); see also Guest v. McCann,
474 F.3d 926, 930 (7th Cir. 2007) (“If a habeas petitioner has not exhausted a claim, and
complete exhaustion is no longer available, the claim is procedurally defaulted.”). Where a
procedural default has occurred, federal habeas corpus review is available only if the petitioner
can demonstrate: (1) “cause for the default and actual prejudice as a result of the alleged
violation of federal law,” or (2) that “failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); Brown v. Watters, 599
F.3d 602, 609 (7th Cir. 2010) (citing Johnson v. Hulett, 574 F.3d 428, 430 (7th Cir. 2009).
Cause to overcome a procedural default requires a showing “that some objective factor”
that prevented compliance with the procedural rule. Coleman, 501 U.S. at 753 (citing Murray
v. Carrier, 477 U.S. 478, 488 (1986)). To show prejudice, a petitioner must present evidence
that the alleged violations “worked to his actual and substantial disadvantage,” which infected

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his entire proceeding with “error of constitutional dimensions.” Perruquet v. Briley, 390 F.3d
505, 515 (7th Cir. 2004) (citation omitted). A fundamental miscarriage of justice occurs only
where the petitioner presents evidence showing that he is “actually innocent” of the charges
against him or the punishment imposed. See, e.g., Dretke v. Haley, 541 U.S. 386, 393 (2004).
Because procedural default is an affirmative defense, Roberts was not required to show
cause and prejudice or actual innocence in his petition. See Perruquet v. Briley, 390 F.3d 505, 515
(7th Cir. 2010). Nevertheless, a court may raise an affirmative defense before requiring the
respondent to answer if “it is so plain from the language of the complaint and other documents
in the court’s files that it renders the suit frivolous.” Gleash v. Yuswak, 308 F.3d 758, 760-61
(7th Cir. 2002) (“Under the circumstances there was no point to serving the defendants with
process, forcing them to engage counsel, and then waiting for the inevitable motion to dismiss.”).
In light of the petitioner’s apparent failure to fairly present his federal claims in state court, a
motion to dismiss the petition as procedurally barred is “inevitable” in this case.
Therefore, Roberts will be allowed an opportunity to overcome his default by showing:
(1) what cause he may have for his failure to properly present his defaulted claims on appeal; and
(2) what prejudice he will suffer as the result of his failure to raise these claims properly; or (3)
whether a failure to review his claims will constitute a fundamental miscarriage of justice because
he is actually innocent of being a sexually violent person as defined by Wis. Stat. ch. 980.
Because any response will be considered as a “supplement” to his petition for a writ of habeas
corpus, Roberts must make sure to declare that any statements contained in his response are
made under penalty of perjury. 28 U.S.C. § 2242 (petition must be “signed and verified” by
petitioner).

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ORDER
IT IS ORDERED THAT:
1. Petitioner Kenneth A. Roberts is directed to show cause, if any, by responding in
writing within thirty (30) days of the date of this order–that is, by August 22, 2013, why his
petition should not be dismissed as barred by the doctrine of procedural default.
2. Petitioner Roberts is advised that, if he does not respond to this order as directed,
then this case may be dismissed for want of prosecution without further notice under Fed. R.
Civ. P. 41(a).
Entered this 23rd day of July, 2013.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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