Miller, Anthony v. Van Hollen, J.B.

Filing 3

ORDER that petitioner Anthony Todd Miller is directed to show cause, if any, by responding in writing within thirty (30) days of the date of this order. Signed by District Judge William M. Conley on 1/29/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ANTHONY TODD MILLER,
v.

Petitioner,

OPINION AND ORDER
14-cv-887-wmc

J.B. VAN HOLLEN, Attorney General,
State of Wisconsin,
Respondent.
Petitioner Anthony Todd Miller is presently serving a sentence of extended
supervision by the State of Wisconsin. Miller seeks a writ of habeas corpus under 28
U.S.C. § 2254 to challenge a state judgment of conviction from St. Croix County. After
conducting a preliminary review of the petition pursuant to Rule 4 of the Rules Governing
Section 2254 Cases, the court concludes that this case is subject to dismissal for the
reason set forth below.

FACTS
The following facts are taken from the petition and the attached state court records
provided by the petitioner:
In St. Croix County Case No. 08CF418, Miller was charged with two counts of
possessing child pornography. Miller entered a guilty plea to both counts. On August
17, 2009, the St. Croix County Circuit Court sentenced him to serve a fifteen-year
sentence, including five years of initial confinement followed by a ten-year term of
extended supervision.

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On direct appeal, Miller argued that the circuit court erred by denying a
post-conviction motion to withdraw his guilty plea. Miller argued further that there was
no evidence to support the conviction, that he was denied effective assistance of counsel
and that there was a defect in the plea colloquy. On August 14, 2012, the Wisconsin
Court of Appeals rejected his arguments and affirmed the conviction in an unpublished
opinion.

See State v. Miller, 2012 WI App 106, 344 Wis. 2d 297, 821 N.W.2d 412.

Miller did not file a petition for review with the Wisconsin Supreme Court.
On December 26, 2012, Miller filed a motion for post-conviction relief pursuant to
§ 974.06, asserting the following grounds for relief:
(1) no evidence exists, and none was introduced to support a conviction for
the offense charged; (2) the failure of the court to establish a factual basis,
on the record, thereby failing to meet the constitutional standard required;
(3) an element was missing from the plea questionnaire and charging
documents; (4) no waiver was obtained of my right to appeal, thus violating
the Constitution; (5) the violation of my 6th Amendment right to a jury
trial on the missing element; (6) the court was without jurisdiction to
impose sentence because the complaint was void and filing of the complaint
without sufficient evidence to support a conviction violates due process; (7)
the infringement of my right against self-incrimination under the United
States and Wisconsin Constitutions; (8) the search warrant issued by a
court without jurisdiction to do so; and (9) the abridgment of rights
guaranteed by the constitutions and laws of this state and the United
States, including a right that was not recognized as existing at the time of
the original action.
In an order entered May 14, 2013, the circuit court denied Miller’s motion,
rejecting his challenge to the factual basis for his guilty pleas on the merits and further
determining that Miller’s pleas had waived his right to challenge the validity of the search
warrant. In so doing, the court applied the general rule that a valid guilty plea waives all
non-jurisdictional defects and defenses, including alleged violations of constitutional
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rights before the plea.

See State v. Riekkoff, 112 Wis. 2d 119, 123, 332 N.W.2d 744

(1983) (citing Hawkins v. State, 26 Wis. 2d 443, 448, 132 N.W.2d 545 (1965)). The
court alternatively determined that Miller’s search-warrant challenge, along with his
remaining claims, were procedurally barred under State v. Escalona-Naranjo, 185 Wis.2d
168, 181-82, 517 N.W.2d 157 (1994).1
After the circuit court denied relief, Miller filed a motion for reconsideration,
asserting that (1) there was no evidence to support his conviction; (2) the State failed to
meet its burden to establish every element of the offense; and (3) there was no factual
basis for his guilty pleas. On October 8, 2013, the circuit court denied the motion for
reconsideration.
On September 3, 2013, Miller filed a notice of appeal from both the order denying
his motion for post-conviction relief under § 974.06 and the order denying his motion for
reconsideration. The Wisconsin Court of Appeals determined that it lacked jurisdiction
to review the order denying Miller’s § 974.06 motion because he failed to timely file his
notice of appeal in compliance with Wis. Stat. Rule 809.10(1)(e).

See State v. Miller,

2014 WI App 83, ¶ 6, 355 Wis. 2d 579, 851 N.W.2d 472 (unpublished).

Accordingly,

jurisdiction was “limited to reviewing the order denying reconsideration, and only to the
extent that Miller’s reconsideration motion raised issues not addressed in the order from

1 The rule in Escalona-Naranjo stands for the proposition that “due process for a convicted
defendant permits him or her a single appeal of that conviction and a single opportunity to
raise claims of error.” State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 343, 576 N.W.2d 84
(Ct. App. 1998). Thus, claims that could have been raised on direct appeal or by prior
motion are barred from being raised in a post-conviction motion absent a sufficient reason for
not raising the claims earlier. See State v. Lo, 2003 WI 107, ¶ 44, 264 Wis. 2d 1, 665
N.W.2d 756.
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which reconsideration was sought.” Id. (citing Silverton Enters., Inc. v. General Cas. Co.,
143 Wis. 2d 661, 665, 422 N.W.2d 154 (Ct. App. 1988) (appeal cannot be taken from
order denying reconsideration motion that presents same issues as those determined in
order sought to be reconsidered)).
Noting that Miller’s motion for reconsideration “merely repackaged some of the
same arguments” determined in the order sought to be reconsidered, the court of appeals
rejected his appeal for lack of jurisdiction. See id., 2014 WI App 83, ¶ 7 (citing Silverton
Enters., 143 Wis. 2d at 665). Observing further that any “new” claims raised by Miller
were procedurally barred under Escalona-Naranjo, the court of appeals declined to consider
the merits of his claims and affirmed the underlying conviction on June 10, 2014. See id.
at ¶ 8.

The Wisconsin Supreme Court summarily denied his petition for review on

November 13, 2014.
In his pending habeas corpus petition, Miller now contends that he is entitled to
relief pursuant to 28 U.S.C. § 2254 for the following reason: (1) there was no evidence to
support his conviction; (2) the State failed to establish a sufficient factual basis to support
his plea; and (3) the criminal complaint was defective for failing to allege all the elements
of the offense. The court finds that review of these claims is barred by the doctrine of
procedural default.

OPINION
As the chronology of this case reflects, Miller’s claim concerning the sufficiency of
his criminal complaint was not raised previously in state court. A federal habeas corpus
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court may not entertain a state prisoner’s petition for relief unless he has first exhausted
all remedies available in state court.
526 U.S. 838, 848 (1999).

28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel,

In Wisconsin, state prisoners wishing to have their

constitutional claims heard in federal court must first present the operative facts and
controlling legal principles of those claims to the Wisconsin Court of Appeals and then to
the Wisconsin Supreme Court. Moore v. Casperson, 345 F.3d 474, 486 (7th Cir. 2003). A
petitioner who fails to present his claims in a petition for discretionary review to a state
court of last resort has not properly presented or exhausted his claims and those claims
are procedurally defaulted. Boerckel, 526 U.S. at 848.
Miller’s remaining claims were rejected by the Wisconsin Court of Appeals for
procedural reasons based on state-law grounds.

See State v. Miller, 2014 WI App 83,

¶¶ 7-8, 355 Wis. 2d 579, 851 N.W.2d 472 (unpublished). Specifically, Miller failed to
file a timely notice of appeal from the circuit court’s order denying his motion for
post-conviction relief under § 974.06. Miller’s subsequent attempt to raise these claims
in a motion for reconsideration was ineffective to confer appellate jurisdiction. See id.,
2014 WI App 83, ¶ 7 (citing Silverton Enters., 143 Wis. 2d at 665).
When a state court resolves a federal claim by relying on a state-law ground that is
both independent of the federal question and adequate to support the judgment, federal
habeas review of the claim is foreclosed. See Coleman v. Thompson, 501 U.S. 722, 729
(1991); Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir. 2010). A state-law ground is
independent when the court actually relied on the procedural bar as an independent basis
for its disposition of the case. Kaczmarek, 627 F.3d at 592.
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A state-law ground is

adequate when it is a firmly established and regularly followed state practice at the time it
is applied. Id.

The failure to file a timely notice of appeal from an order denying a

post-conviction petition for relief is the type of procedural default that is sufficient to bar
federal review. See Jenkins v. Gramley, 8 F.3d 505, 507 (7th Cir. 1993).

Accordingly,

Miller’s procedural default bars federal review unless he establishes that an exception
applies.
A habeas petitioner may overcome procedural default by establishing cause for the
default, as well as that the court’s failure to consider the claim would result in a
fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).
A petitioner can demonstrate cause for his default by pointing to some objective factor
external to the defense which blocked his ability to comply with the procedural rule.
Murray v. Carrier, 477 U.S. 478, 488 (1986). To show actual prejudice, he must present
evidence that the errors at trial “worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.” Perruquet v. Briley, 390
F.3d 505, 515 (7th Cir. 2004) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)
(emphasis in original).

The fundamental-miscarriage-of-justice exception requires a

showing that “a constitutional violation has ‘probably resulted’ in the conviction of one
who is ‘actually innocent’ of the substantive offense.” Dretke v. Haley, 541 U.S. 386, 393
(2004) (quoting Carrier, 477 U.S. at 496); accord Schlup v. Delo, 513 U.S. 298, 327 (1995).
Because procedural default is an affirmative defense, petitioner was not required to
show cause and prejudice or actual innocence in his original petition. Perruquet, 390 F.3d
at 515. Nevertheless, a court may raise an affirmative defense before requiring the state to
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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 this instance, a motion to dismiss the petition as procedurally barred is
inevitable.
Therefore, Miller will be allowed an opportunity to overcome the procedural
default with respect to his claims by showing: (1) what cause he may have for his failure
to properly present his defaulted claims and (2) what prejudice he suffered; or (3) whether
a failure to review his claims will constitute a fundamental miscarriage of justice because
he is actually innocent. Miller should label his document a “supplement to his petition
for a writ of habeas corpus under § 2254” and make sure to declare that any statements
he makes in the supplement are made under penalty of perjury. 28 U.S.C. § 2242
(petition must be “signed and verified” by petitioner).
ORDER
IT IS ORDERED that:
(a) Petitioner Anthony Todd Miller is directed to show cause, if any, by
responding in writing within thirty (30) days of the date of this order why
his petition should not be dismissed as barred by the doctrine of procedural
default by showing: (1) what cause he may have for his failure to properly
present his defaulted claims in state court and (2) what prejudice he
suffered; or (3) whether a failure to review his claims will constitute a
fundamental miscarriage of justice because he is actually innocent.
(b) Miller should label his document a “supplement to his petition for a writ of
habeas corpus under § 2254” and make sure to declare that any statements

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he makes in the supplement are made under penalty of perjury. 28 U.S.C. §
2242 (petition must be “signed and verified” by petitioner).
(c) No further action will be taken in this case until Miller files a response to
this order. Miller is advised that if he does not respond to this order
as directed this case will be dismissed without further notice under
Fed. R. Civ. P. 41(b).
Entered this 29th day of January, 2015.
BY THE COURT:
/s/
________________________
WILLIAM M. CONLEY
District Judge

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