Schmidt, Scott v. McCullough, Deborah

Filing 2

ORDER that petitioner Scott R. Schmidt may have until June 26, 2014, in which to amend his petition to (1) state a claim under the due process clause and (2) advise the court whether (a) he had cause for procedurally defaulting his due process claims and the due process errors prejudiced his civil commitment proceedings or (b) enforcing his civil commitment would be a fundamental miscarriage of justice. If petitioner does not respond by that date, his petition will be denied. Signed by District Judge Barbara B. Crabb on 6/5/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - SCOTT R. SCHMIDT,
OPINION AND ORDER
Petitioner,
14-cv-287-bbc
v.
DEBORAH McCULLOUGH,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner Scott R. Schmidt has been civilly committed as a sexually violent person
under chapter 980 of the Wisconsin Statutes. He is confined at the Sandridge Treatment
Center in Mauston, Wisconsin and has filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254. He has paid the five dollar filing fee, so his petition is before the court for
preliminary review under Rule 4 of the Rules Governing Section 2254 Cases.
Petitioner contends that his 2010 civil commitment was unconstitutional because the
prosecution entered evidence into the record from petitioner’s therapy sessions that
petitioner says was highly prejudicial and of low probative value. Petitioner argues that he
should be granted relief under Wis. Stat. § 752.35 and under the due process clause of the
Fourteenth Amendment. However, his petition does not state grounds for relief under §
2254 for two reasons. First, Wis. Stat. § 752.35 does not implicate the federal constitution
or federal laws. Second, petitioner has not exhausted his state court remedies because he did

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not fairly present his due process theory to all levels of the state court system before filing
this petition. Even if he had, the facts he has alleged do not state grounds for relief under
the due process clause. I will give petitioner an opportunity to file an amended petition that
shows why his procedural default may be excused and that alleges facts sufficient to state
grounds for relief under the due process clause. If he does not do so, his petition will be
denied.
Petitioner alleges the following facts in his petition and its attachments.

RECORD FACTS
Petitioner Scott R. Schmidt was civilly committed in the Circuit Court for Walworth
County on September 10, 2010. During the commitment proceedings, the jury heard
evidence from petitioner’s therapist about petitioner’s descriptions of his acts of rape and
sexual assault, as well as petitioner’s motivations and feelings about these acts. After the jury
found petitioner to be a sexually violent person, he was committed indefinitely to the
Sandridge Treatment Center.
Petitioner moved for new commitment proceedings on the ground that the evidence
from his therapy sessions was so prejudicial and immaterial that the jury did not decide the
real issue which was his current propensity for sexual violence. The circuit court denied the
motion, and petitioner appealed the judgment of commitment as a sexually violent person
under Wis. Stat. Ch. 980 on the same ground of prejudice and irrelevance. State v. Schmidt,
2011AP1625 (Wis. Ct. App. November 7, 2012). (See also petitioner’s appellate brief,

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available at http://wscca.wicourts.gov/caseSearch.xsl under appeal no. 2011AP1625.) The
Wisconsin court of appeals affirmed the circuit court’s judgment of commitment on
November 7, 2012, holding that the evidence petitioner complained of did not cloud the
issue so greatly as to prevent the real controversy of the case from being tried. Id. Petitioner
then sought review from the Wisconsin Supreme Court, on the ground that the commitment
proceedings violated his right to due process because the highly prejudicial evidence from the
therapy sessions was allowed into the record. The state supreme court denied his petition
for review without comment on May 13, 2013.

OPINION
Under Rule 4 of the Rules Governing Section 2254 Cases, I must dismiss any petition
for habeas corpus that does not show that the petitioner may be entitled to relief. Petitioner
argues that he is entitled to relief on the following grounds: (1) “The jury was repeatedly
presented with unfairly prejudicial information of [low] probative value—the right to a ‘fair
trial’ was violated,” Pet., dkt. #1, at 5; (2) “The real controversy—Mr. Schmidt’s present and
future dangerousness—was not fully tried, because the jury improperly heard multiple
recitations of Mr. Schmidt’s graphic, first-person narratives of sexual assault which he
provided in treatment in [the] 1990s,” id. at 7; (3) “The trial court erred by deciding the
interest-of-justice claim on waiver, and by employing the wrong legal standard to find any
possible error harmless,” id. at 8; (4) “Were the trial proceedings ‘fair’ as required in the
federal and state constitutions under the Due Process Clause?” id. at 10; (5) “Was guilt

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established by ‘unfairly prejudicial’ evidence—instead of—probative evidence in violation
of the Due Process Clause?” id. at 11; and (6) “Did the ‘cumulative effect’ of the State’s
actions shatter the Due Process guarantee of fundamental fairness?” id. at 13.
The first two grounds appear to raise the same issue: whether the “real controversy”
was not tried in petitioner’s commitment proceedings because the jury was influenced by the
prejudicial evidence from petitioner’s therapy sessions. The problem with this argument is
that it relies on state law rather than on the U.S. Constitution or federal law.

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requirement to try the “real controversy” comes from Wis. Stat. § 752.35, not the U.S.
Constitution. Although § 752.35 provides grounds for appealing adverse judgments in
Wisconsin courts, it does not provide a ground on which this court could hear a petition for
habeas corpus. Habeas petitions are reserved for claims that the federal Constitution or a
federal statute has been violated by the proceedings against the petitioner. 28 U.S.C. §
2254(a) (“[A] district court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the United States.”)
(emphasis added). Thus, petitioner is not entitled to relief on these grounds.
Petitioner’s third ground for relief appears to be about the standard of review applied
by the circuit court when it found that petitioner had waived his evidentiary arguments.
Even if the circuit court erred, its error did not matter once the court of appeals decided the
merits of petitioner’s appeal in reliance on Wis. Stat. § 752.35. Schmidt, 2011AP1625. In
any event, because this is another state law issue, it cannot be remedied by a petition for

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habeas corpus. 28 U.S.C. § 2254(a).
Petitioner’s remaining arguments seem to be that the commitment proceedings
violated the due process clause because the evidence from his therapy sessions “was
improper” and its “prejudicial effect . . . exceeded the probative value.” Pet., dkt. #1, at 10.
Further, petitioner says the commitment proceedings focused on irrelevant information, such
as his past acts rather than his present behavior, and the “cumulative effect” of the
presentation of the prejudicial evidence violated “fundamental fairness.” Id. at 11-13.
Petitioner does not explain how any of these alleged errors qualifies as a due process
violation rather than a state law evidentiary error, but, even if I assume that he could state
a due process claim on these facts, he forfeited that claim because he did not present it to
the Wisconsin Court of Appeals.
Under 28 U.S.C. § 2254, a petitioner must present each ground for relief to the state
courts before the federal district court may review it. “This 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.” Lewis v. Sternes, 390 F.3d 1019, 1025-26
(7th Cir. 2004) (emphasis added). If a petitioner does not do so, he cannot rely on that
ground for relief in a petition brought under § 2254. Id. In this case, petitioner did not
present his due process argument to the Wisconsin Court of Appeals. See generally Pet.’s
App. Br., available at http://wscca.wicourts.gov/caseSearch.xsl. Rather, petitioner challenged
his civil commitment under Wis. Stat. § 752.35 and the circuit court’s determination that
he had waived any evidentiary arguments. Id. As a result, petitioner did not give the state

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courts an opportunity to rule on grounds four through six, which means that the claims
relating to due process are either unexhausted or procedurally defaulted.
Petitioner has already completed the appeal of his commitment through the state
courts. Thus, it appears that he is procedurally barred from pursuing his due process
arguments in grounds four through six in the state court system. In that case, the doctrine
of procedural default may bar him from pursuing those grounds in his habeas petition.
Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004) (“[W]here, as in this case, the
petitioner has already pursued his state-court remedies and there is no longer any state
corrective process available to him, it is not the exhaustion doctrine that stands in the path
to habeas relief, . . . but rather the separate but related doctrine of procedural default.”);
Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002); Chambers v. McCaughtry, 264 F.3d
732, 737-38 (7th Cir. 2001). If a petitioner has procedurally defaulted a claim, a federal
court cannot reach the merits of that claim unless the petitioner can demonstrate (1) cause
for the default and actual prejudice from failing to raise the claim as required or (2) that
enforcing the default would lead to a “fundamental miscarriage of justice.” Steward v.
Gilmore, 80 F .3d 1205, 1211-12 (7th Cir. 1996) (quoting Wainwright v. Sykes, 433 U.S.
72, 87 (1977)).
I will give petitioner an opportunity to show that he had a good reason for failing to
raise his due process claims at the Wisconsin court of appeals and that the due process errors
he complains of caused him to suffer actual prejudice. In other words, he must demonstrate
that the errors changed the outcome of his civil commitment. Weddington v. Zatecky, 721

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F.3d 456, 465 (7th Cir. 2013). Alternatively, petitioner may show that not allowing him
to proceed on his due process claims would lead to a fundamental miscarriage of justice.
Petitioner is warned that this argument requires that he allege to “be actually innocent of the
crime for which he . . . is imprisoned.” Steward, 80 F .3d at 1212. Petitioner may have until
June 26, 2014, in which to file an amended petition showing why he should be allowed to
proceed on his due process claims.

ORDER
IT IS ORDERED that petitioner Scott R. Schmidt may have until June 26, 2014, in
which to amend his petition to (1) state a claim under the due process clause and (2) advise
the court whether (a) he had cause for procedurally defaulting his due process claims and the
due process errors prejudiced his civil commitment proceedings or (b) enforcing his civil
commitment would be a fundamental miscarriage of justice. If petitioner does not respond
by that date, his petition will be denied.
Entered this 5th day of June, 2014.

BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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