Schroeder, Ronald v. Tegels, Lizzie

Filing 20

Transmission of Notice of Appeal, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 18 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Docket sheet) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - RONALD E. SCHROEDER,
ORDER
Petitioner,
17-cv-139-bbc
v.
LIZZIE TEGELS,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Petitioner Ronald Schroeder has responded to the court’s order to show cause why
many of the claims in his petition for a writ of habeas corpus should not be dismissed under
the doctrine of procedural default. Because none of the arguments in petitioner’s response
have merit, I am dismissing all of the claims.
Petitioner is challenging convictions from the year 2007 for sexual assault of an
unconscious person, taking nude photographs of a woman without her consent and accessing
her computer data without consent. He raised numerous claims in his petition, which I
screened in accordance with Rule 4 of the Rules Governing 2254 Petitions. Dkt. #8. I
dismissed some of the claims on the merits and concluded that the rest may be subject to
dismissal under the doctrine of procedural default because the Wisconsin Court of Appeals
concluded that petitioner had forfeited the claims by failing to develop an argument showing
why he believed he was entitled to relief. State v. Schroeder, No. 2014AP1388, 2016 WL

1

8606267, at *1 (Wis. Ct. App. May 18, 2016) (petitioner “fails to provide a sufficient
reason explaining why these claims were not raised earlier, as part of his direct appeal.
Insofar as Schroeder asserts postconviction counsel's ineffectiveness as a sufficient reason,
his motion fails to allege “sufficient material facts—e.g., who, what, where, when, why, and
how—that, if true, would entitle the defendant to the relief he seeks.”). The Court of
Appeals for the Seventh Circuit has upheld as “adequate” Wisconsin’s requirement that
prisoners develop arguments regarding ineffective assistance of counsel. Lee v. Foster, 750
F.3d 687, 694 (7th Cir. 2014) (“The . . . rule is a well-rooted procedural requirement in
Wisconsin and is therefore adequate.”). Accordingly, I gave petitioner an opportunity to
show that the doctrine should not apply either because he had good cause for failing to
develop his arguments or because enforcing the default would lead to a fundamental
miscarriage of justice. Steward v. Gilmore, 80 F.3d 1205, 1211-12 (7th Cir. 1996) (setting
forth standard for overcoming procedural default).
In his response, petitioner asserts five reasons why the court should consider his
petition on the merits: (1) the state failed to respond to his post conviction motion in the
state circuit court, so it forfeited a “procedural bar defense”; (2) he raised all his claims “in
detail” in the post conviction motion he filed in the circuit court; (3) his “biased juror” claim
raises a structural error, so it cannot be forfeited; (4) he “diligently pursued” his “biased
juror” claim; and (5) he did not have counsel during post conviction proceedings. I conclude
that none of these reasons show either that the state court of appeals erred in rejecting his
claims or that petitioner has cause for defaulting.

2

The first reason is a nonstarter because the state court of appeals was not relying on
a “procedural bar defense” raised by the state. The court simply was enforcing its own rule
that a petitioner must develop his argument. Regardless what the state argues, the burden
remains on the petitioner to show that he is entitled to relief; the state is not required to
show that petitioner lacks entitlement to relief.
Petitioner’s second reason represents a challenge to the court of appeals’s conclusion
that petitioner failed to develop his argument adequately. This argument fails for two
reasons. First, the Court of Appeals for the Seventh Circuit has declined to consider whether
the state court applied its own rule properly in any particular case. Lee, 750 F.3d at 694
(rejecting argument that “the level of specificity in [habeas petitioner’s] postconviction
motion. . . should be sufficient to withstand review under the [Wisconsin] rule,” reasoning
that “our review of the adequacy of a state ground is limited to whether it is a firmly
established and regularly followed state practice at the time it is applied, not whether the
review by the state court was proper on the merits.”). Second, petitioner cites nothing in the
record showing that he identified to the state courts how his counsel rendered deficient
performance and prejudiced him. The two pages he cites from his state court brief are
nothing but conclusory assertions without context.
Petitioner’s third reason is that a “biased juror” claim cannot be forfeited because it
is a “structural error.”

Petitioner misunderstands the law.

The Supreme Court has

determined that some trial errors “are so intrinsically harmful” that prejudice is assumed and
need not be proven in each case. Winston v. Boatwright, 649 F.3d 618, 632 (7th Cir.

3

2011). However, harmless error and procedural default are separate concepts. A petitioner
still must show that his trial actually contained a structural error because structural errors
are subject to waiver and forfeiture under the doctrine of procedural default just like any
other claim. Ward v. Hinsley, 377 F.3d 719, 726 (7th Cir. 2004) (“The procedural default
doctrine is grounded in concerns of comity and federalism. These concerns are in no way
diminished if the federal claim raised before the federal habeas court is one of structural
error.”).
Petitioner’s fourth reason, that he “diligently pursued” his “biased juror” claim, is
another nonstarter. It is undisputed that petitioner did not raise a claim about a biased juror
on direct appeal. Although plaintiff blames his counsel for that failure, that simply brings
the analysis back the original problem, which is that the court of appeals concluded that
petitioner failed to adequately articulate the basis for his ineffective assistance claim.
Finally, petitioner’s allegation that he did not have counsel for his postconviction
motion is both misleading and irrelevant. The circuit court appointed two lawyers for
plaintiff, but petitioner could not get along with either of them. Schroeder, 2016 WL
8606267, at *1. After the second lawyer withdrew, petitioner stated that he was “grateful
and relieved to have [the attorney] off my case.” Id.
In any event, petitioner’s status as a pro se litigant is not a ground for excusing his
procedural default. Petitioner relies on Martinez v. Ryan, 566 U.S. 1, 17 (2012), in which
the Supreme Court set forth the following rule: “Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review collateral proceeding, a

4

procedural default will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.” This rule does not help petitioner
because the Court of Appeals for the Seventh Circuit has held that it does not apply in
Wisconsin: “Wisconsin law expressly allows—indeed, in most cases requires—defendants to
raise claims of ineffective assistance of trial counsel as part of a consolidated and counseled
direct appeal, and provides an opportunity to develop an expanded record.” Nash v. Hepp,
740 F.3d 1075, 1079 (7th Cir. 2014).
In sum, petitioner has failed to identify any reason why his claims should not be
barred under the doctrine of procedural default. Accordingly, I am dismissing these claims
and denying his petition for a writ of habeas corpus.
Under Rule 11 of the Rules Governing Section 2254 Cases, I must issue or deny a
certificate of appealability when entering a final order adverse to the petitioner. A certificate
of appealability may issue if the petitioner has made a “substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). That means that petitioner must show that
“reasonable jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). Although Rule 11 allows the court to invite further briefing on this issue, it is not
necessary to do so here because the question is not a close one. In this case, it is clear that
(1) most of petitioner’s claims are barred under the doctrine of procedural default; and (2)

5

petitioner’s remaining claims have no merit, as discussed in the original screening order, dkt.
#8. Accordingly, no certificate will issue.

ORDER
IT IS ORDERED that
1. Petitioner Ronald Schroeder’s petition for a writ of habeas corpus is DENIED.
2. The following claims in the petition are DISMISSED on the merits for the reasons
stated in the May 16, 2017 order:
•

Wis. Stat. § 940.225(2)(d) is unconstitutional on its face or as applied to
petitioner; trial and post conviction counsel were constitutionally ineffective
for failing to raise this issue;

•

the judge presiding over petitioner’s post conviction proceedings violated
petitioner’s right to due process by refusing to recuse herself;

•

the judge presiding over petitioner’s post conviction proceedings violated
petitioner’s right to due process by refusing to adjourn the proceedings so that
petitioner could obtain his “case file”;

•

the judge presiding over petitioner’s post conviction proceedings violated
petitioner’s right to due process by stating it was petitioner’s fault that he did
not have his “case file”;

•

the judge presiding over petitioner’s post conviction proceedings violated
petitioner’s right to due process by deciding his claims before appointing
counsel as she said she would.

3. The following claims are DISMISSED under the doctrine of procedural default:
•

trial counsel was constitutionally ineffective for failing to move for a mistrial
after the jury foreperson stated that he was “uncomfortable” viewing “the
photos” and the trial judge failed to “adequately question” the juror; appellate
counsel was constitutionally ineffective for failing to raise this issue on appeal;

6

•

a detective tampered with a camera that was used as evidence; “counsel” was
constitutionally ineffective for failing to challenge the evidence;

•

petitioner’s presentence investigation report included inaccurate information;

•

trial counsel was constitutionally ineffective for failing to object to “other acts”
evidence;

•

petitioner’s conviction for accessing computer data without consent violates
the First Amendment; trial counsel was constitutionally ineffective for failing
to seek dismissal of that charge;

•

petitioner’s trial counsel was constitutionally ineffective for failing to inform
petitioner of a potential lesser included offense;

•

the trial court violated petitioner’s right to due process by failing to consider
probation as a possible sentence;

•

the trial court violated petitioner’s right to due process by refusing trial
counsel’s request for a continuance “to research and address inaccurate
information” that the court had received in letters from petitioner’s “ex-wives
and their families”;

•

trial counsel was constitutionally ineffective by failing to object to the
admission of petitioner’s blood as evidence;

•

trial counsel was constitutionally ineffective for failing to seek suppression of
unspecified evidence on the ground that officers failed to knock before
entering his home;

•

trial counsel was constitutionally ineffective for failing to call detective
Gralinski as a witness;

•

trial counsel was constitutionally ineffective for failing to object to the
definition of “unconscious” in the jury instructions;

•

trial counsel was constitutionally ineffective for failing to file a motion to
compel the state to produce sexually explicit text messages that the alleged
victim had sent petitioner; appellate counsel was ineffective for failing to raise
this issue on appeal;

•

trial counsel was constitutionally ineffective for failing to seek dismissal of all
7

but one of the charges for taking nude photographs on the ground of
“multiplicity”; appellate counsel was constitutionally ineffective for failing to
raise the issue on appeal;
•

4.

trial counsel was constitutionally ineffective for failing to seek dismissal of the
charges for taking nude photographs on the ground that the charges were an
“unwarranted government intrusion into [petitioner’s] private, consensual
intimate conduct.”
Petitioner is DENIED a certificate of appealability.

Petitioner may seek a

certificate from the court of appeals under Fed. R. App. P. 22.
5. The clerk of court is directed to enter judgment and close this case,
Entered this 5th day of September, 2017.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

8