Shepler, Christopher v. State of Wisconsin

Filing 2

ORDER that petitioner has until May 25, 2018, in which to file a supplement to his petition. Signed by Magistrate Judge Stephen L. Crocker on 4/26/2018. (jef),(ps)

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

CHRISTOPHER SHEPLER,
Petitioner,

ORDER

v.

17-cv-0038-wmc

JUDY P. SMITH 1, Warden,
Oshkosh Correctional Institution,
Respondent.

Christopher Shepler, an inmate at the Oshkosh Correctional Institution, has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and has paid the $5
filing fee. The subject of the petition is petitioner’s 2012 conviction in the Circuit Court
for Marathon County for first-degree sexual assault and child enticement. 2
The petition is before the court for preliminary review pursuant to Rule 4 of the
Rules Governing Section 2254 Cases. Rule 4 provides that when conducting this review,
[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss
the petition and direct the clerk to notify the petitioner. If the petition is not
dismissed, the judge must order the respondent to file an answer, motion, or
other response within a fixed time, or to take other action the judge may
order.

1 Petitioner improperly named “State of Wisconsin” as the respondent. I have amended the caption
to reflect that the proper respondent is Judy Smith, the warden at the institution where petitioner is in
custody. See Rule 2(a) of the Rules Governing Section 2254 Cases.
2 Petitioner was also convicted of possession of a dangerous weapon and obstructing an officer, but he
does not challenge those charges in his petition.

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During initial review of habeas petitions, the court looks to see whether the petitioner has
set forth cognizable constitutional or federal law claims, exhausted available state remedies,
and whether the petition is timely.
Shepler’s petition is very bare-bones, but he has attached exhibits that help provide
a better picture of his case.

In reviewing the petition, I have has also reviewed the

Wisconsin Court of Appeals’ decision affirming petitioner’s conviction. As discussed in
more detail below, those materials plainly show that the petition is subject to dismissal on
procedural default grounds.

FACTUAL BACKGROUND
The following facts are drawn from the state court of appeals’ decision on
petitioner’s direct appeal. State v. Shepler, 366 Wis. 2d 809, 874 N.W. 2d 347 (Table),
2016 WI App 16, 2015 WL 9464667 (unpublished disposition).

In August 2012,

Shepler was charged with two counts of first-degree sexual assault of a child under twelve,
one count of second-degree sexual assault and two counts of child enticement, when
Shepler was just under age eighteen. Before trial, the state moved to introduce other-acts
evidence concerning an allegation of sexual assault of a four-year-old boy by Shepler in
October 2005, when he was 11. After conducting two hearings, the trial court ruled that
the other-acts evidence was admissible under the test articulated by the Wisconsin
Supreme Court in State v. Sullivan, 216 Wis. 2d 768, 576 N.W. 2d 30 (1998). The state
then presented a plea offer, which Shepler accepted based on the advice of his lawyer.
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Under the agreement, he pled guilty to one count of first-degree sexual assault and one
count of child enticement, and the other counts were dismissed and read in. The court
sentenced him to 15 years in prison.
Shepler filed a postconviction motion seeking to withdraw his plea on the ground
that his trial lawyer was ineffective for making an inadequate Sullivan argument. After
considering the additional challenge to the other-acts evidence raised in Shepler’s
postconviction motion, the trial court ruled that it would have reached the same decision
and allowed the other-acts evidence even had it considered his new arguments.
Accordingly, it denied the motion.
On appeal, Shepler sought reversal solely on the ground that the trial court had
erred in determining that the state’s other-acts evidence would be admissible at trial. After
noting that Shepler had waived his right to challenge the trial court’s evidentiary ruling
when he entered his guilty plea, the court of appeals nonetheless exercised its discretion
and reached the merits because the state had responded to petitioner’s argument. Shepler,
n. 3. With respect to the ineffective assistance claim that petitioner had pursued in his
postconviction motion, the court found that petitioner had forfeited it by failing to raise it
on appeal.
The court of appeals affirmed the conviction, ruling that the circuit court had not
abused its discretion in deciding that the other-acts evidence was admissible. Petitioner
did not file a petition for review with the Wisconsin Supreme Court.

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DISCUSSION
According to 28 U.S.C. § 2254(b)(1)(A), a habeas petition shall not be granted
unless the petitioner “has exhausted the remedies available in the courts of the State.”
The principles of comity underlying the exhaustion doctrine require the petitioner to give
the state courts a “full and fair opportunity to resolve constitutional claims” before raising
those claims in a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
To comply with this requirement, the petitioner must assert his claims through one
complete round of state court review. Id.; Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th
Cir. 2004). For a Wisconsin prisoner, this means that he must include his claims in a
petition for discretionary review with the Wisconsin Supreme Court. Moore v. Casperson,
345 F.3d 474, 486 (7th Cir. 2003). Failure to do so constitutes a procedural default.
Boerckel, 526 U.S. at 848.
Petitioner acknowledges that he did not file a petition for review with the Wisconsin
Supreme Court. Therefore, this court is procedurally barred from considering the merits
of his petition unless petitioner can show either (1) cause for the default and actual
prejudice or (2) that failure to consider the claims will result in a fundamental miscarriage
of justice. Thomas v. Williams, 822 F.3d 378, 386 (7th Cir. 2016) (quoting Coleman v.
Thompson, 501 U.S. 722, 750 (1991)). To show “cause,” petitioner must show that “some
objective factor external to the defense impeded counsel's [or petitioner's] efforts to comply
the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). To invoke the
miscarriage of justice exception, petitioner must show that the constitutional violation has
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probably resulted in a conviction of one who is actually innocent. See Schlup v. Delo, 513
U.S. 298, 327 (1995).
Petitioner asserts that he did not petition the Wisconsin Supreme Court for review
because his lawyer “did not take it to supreme court.” (Dkt. #1, ¶12(b).) Even if the
court infers from this vague statement that petitioner means to say that his appellate lawyer
was ineffective, such ineffectiveness would not establish “cause” for his default. That is
because to constitute “cause” to excuse a procedural default, there must be a constitutional
right to assistance of counsel in the state proceeding. Coleman, 501 U.S. at 752. There
is no constitutional right to counsel in second-tier discretionary review to the state's highest
court. Ross v. Moffitt, 417 U.S. 600, 610 (1971). Accordingly, any alleged ineffectiveness
of petitioner’s counsel in connection with the petition for discretionary review does not
establish “cause” (as the law defines that term) for his default.
Unable to meet the cause and prejudice exception, petitioner’s only option for
avoiding his default is the actual innocence exception.

To show “actual innocence,”

petitioner must “present[ ] evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also satisfied that the trial was
free of nonharmless constitutional error.” Schlup, 513 U.S. at 316. Petitioner must show
that “in light of new evidence, it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt.” House v. Bell, 547 U.S. 518, 537
(2006), quoting Schlup, 513 U.S. at 327; see also Gladney v. Pollard, 799 F.3d 889, 896 (7th

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Cir. 2015). To be “new,” the evidence need not be “newly discovered” but must be
evidence that was not presented at trial. Gladney, 799 F.3d at 898.
Petitioner does not say he has any new evidence or argue that he is actually
innocent.

Nevertheless, because procedural default is an affirmative defense that

petitioner was not required to address in his petition, I will give him an opportunity to
respond to this order with facts showing that he can satisfy the miscarriage of justice
exception to the procedural default rule. If he fails to do so, then the presiding judge likely
will dismiss the petition.

ORDER
IT IS ORDERED that petitioner has until May 25, 2018, in which to file a
supplement to his petition presenting facts showing that he can satisfy the miscarriage of
justice exception to the procedural default rule, as discussed in this opinion.
Entered this 26th day of April, 2018.
BY THE COURT:
/s/
__________________________
STEPHEN L. CROCKER
Magistrate Judge

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