Seehafer, Michael v. Wis Department of Corrections

Filing 7

ORDER that petitioner Michael R. Seehafer has until April 4, 2016 to file a supplement to his petition showing why claims 3 and 4 of his petition should not be dismissed as barred by the doctrine of procedural default. If petitioner does not respond to this order by the April 4, 2016 deadline, then the presiding judge will dismiss claims 3 and 4 as barred by the doctrine of procedural default and will direct the state to respond to claims 1 and 2 of the petition. Signed by Magistrate Judge Stephen L. Crocker on 3/2/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MICHAEL R. SEEHAFER,
Petitioner,
ORDER
v.
15-cv-689-wmc
WISCONSIN DEPARTMENT OF CORRECTIONS,
Respondent.
Michael R. Seehafer has filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 in which he challenges a judgment of conviction for one count of operating while under
the influence, entered on January 7, 2010 by the Circuit Court for Marathon County in case no.
07CF699. He has paid the $5 filing fee, so his petition is ready for screening pursuant to Rule
4 of the Rules Governing Section 2254 Cases. Rule 4 requires the court to examine the petition
and supporting exhibits and dismiss a petition if it “plainly appears” that petitioner is not
entitled to relief. If the petition is not dismissed, then the court orders respondent to answer
or otherwise respond to the petition.
Seehafer asserts the following grounds for relief in his petition: (1) the state failed to turn
over exculpatory evidence; (2) the state lacked probable cause or reasonable suspicion to stop
or detain him and the trial court improperly denied his motion to suppress evidence obtained
as a result of the illegal stop; (3) the electronic records of his previous convictions are incorrect
and resulted in an improper increase in his sentence; and (4) various county officials conspired
to force him to plead no contest in his previous cases, which resulted in him being improperly
sentenced in case numbers 02CF144 and 05CF371, which then tainted proceedings in
07CF699.
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From the information contained in the petition and in Wisconsin’s online court records,
it appears that Seehafer properly exhausted claims 1 and 2. Additionally, these claims appear
to allege constitutional violations that may be reviewable under § 2254. Accordingly, the court
will order the state to respond to these claims. Before doing so, however, the court must
determine whether Seehafer may proceed with claims 3 and 4 of his petition.
Claims 3 and 4 are barred by the doctrine of procedural default. The gist of these claims
is that illegalities with Seehafer’s previous OWI convictions render his conviction and sentence
in 07CF699 illegal as well. Seehafer did not raise these claims on direct appeal of the 07CF699
conviction, or in his first postconviction motion filed in that case. Instead, after the conclusion
of his direct appeal in 07CF699, Seehafer filed a motion under Wis. Stat. § 974.06, claiming
that his OWI convictions in 99TR3103, 99CT656, 02CF144, and 05CT656 were invalid for
various reasons, resulting in him being incarcerated for longer than was proper and tainting
proceedings in 07CF699. See State v. Seehafer, Case Nos. 2014AP794-797 (Wis. Ct. App. Apr.
21, 2015). The Court of Appeals affirmed dismissal of the motion on the grounds that he could
not challenge the old convictions because he was no longer in custody pursuant to those. Id. at
2. With respect to his claims relating to 07CF699, the court held that Seehafer had procedurally
defaulted on those claims by failing to raise them on direct appeal or in his previous
postconviction motions. Id. (citing State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517
N.W.2d 157 (1994)).
Under the procedural default doctrine, a federal court is precluded from reaching the
merits of a habeas claim if the petitioner either (1) failed to present his claim to the state courts
and it is clear that those courts would now hold the claim procedurally barred; or (2) presented
his claim to the state courts but the state court dismissed the claim on a state procedural ground
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independent of the federal question and adequate to support the judgment. Perruquet v. Briley,
390 F.3d 505, 514 (7th Cir. 2004); Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002);
Chambers v. McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001). The second scenario applies
here: Seehafer presented his claims to the state courts, but the courts dismissed his claims on
procedural grounds that were independent of the merit of his claims. Accordingly, these claims
are procedurally defaulted.
A habeas petitioner may overcome procedural default by demonstrating cause for the
default and actual prejudice or by showing 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 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, 390 F.3d at 515 (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, Seehafer was not required to show
cause and prejudice or actual innocence in his petition. Perruquet, 390 F.3d at 515. Nevertheless,
a court may raise an affirmative defense before requiring the state 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
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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 claims
3 and 4 of the petition as procedurally barred is inevitable.
Therefore, the court will provide Seehafer 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 if the court fails to consider his claims; or (3)
whether a failure to review his claims will constitute a fundamental miscarriage of justice because
he is actually innocent of the OWI conviction in case number 07CF699.
Because any response will be considered as a “supplement” to his petition for a writ of
habeas corpus, Seehafer 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). Seehafer may have 30 days to file the supplement. If he files the supplement,
the court will determine whether he may proceed with claims 3 and 4 or whether they should
be dismissed as procedurally defaulted. The court will then order the state to respond to the
petition. If Seehafer fails to file a supplement within 30 days, the court will order the state to
respond to claims 1 and 2 of the petition and claims 3 and 4 will be dismissed as procedurally
defaulted.

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ORDER
IT IS ORDERED THAT:
1. Petitioner Michael R. Seehafer has until April 2, 2016 to file a supplement to his
petition showing why claims 3 and 4 of his petition should not be dismissed as
barred by the doctrine of procedural default.

2. If petitioner does not respond to this order by the April 2, 2016 deadline, then
the presiding judge will dismiss claims 3 and 4 as barred by the doctrine of
procedural default and will direct the state to respond to claims 1 and 2 of the
petition.

Entered this 2nd day of March, 2016.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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