Schroeder, Ronald v. Tegels, Lizzie

Filing 8

ORDER dismissing with prejudice the claims specified within this order. Petitioner may have until June 9, 2017, to show cause why the remaining claims should not be dismissed under the doctrine of procedural default. Signed by District Judge Barbara B. Crabb on 5/16/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - RONALD E. SCHROEDER,
OPINION AND ORDER
Petitioner,
17-cv-139-bbc
v.
LIZZIE TEGELS,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Ronald Schroeder has filed a petition for a writ of habeas corpus under 28 U.S.C. §
2254 in which he challenges 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. (Petitioner was convicted of domestic abuse at the same
time, but he is not challenging that conviction.) Petitioner has paid the $5 filing fee, so his
petition is ready for screening under Rule 4 of the Rules Governing 2254 Petitions, which
requires the court to dismiss the petition if it plainly appears that petitioner is not entitled
to relief.
Before the court could screen the petition, petitioner filed an amended petition, dkt.
#6, along with exhibits, dkt #6-2, and what he calls a brief, but is more accurately called a
factual supplement, dkt. #7. The amended petition appears to be a replacement for the
original, so I will disregard the original petition and screen the amended one.

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The form that petitioner submitted includes only four grounds for relief, but
accompanying the petition is an “addendum” in which petitioner raises 20 “claims,” many
of which include both an alleged trial error and a claim for ineffective assistance of counsel
for failing to challenge the alleged error. Because the first four claims in the addendum seem
to match the claims in the petition, I will assume that the addendum includes all of the
claims that petitioner wishes to bring. To avoid confusion, I will organize petitioner’s claims
the same way he does:
(1) Wis. Stat. § 940.225(2)(d) (prohibiting sexual assault of an unconscious
person) violates the First Amendment as applied to petitioner; trial and post
conviction counsel were constitutionally ineffective for failing to raise this
issue;
(2) 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;
(3) a detective tampered with a camera that was used as evidence; “counsel”
was constitutionally ineffective for failing to challenge the evidence;
(4) petitioner’s presentence investigation report included inaccurate
information;
(5) trial counsel was constitutionally ineffective for failing to object to “other
acts” evidence;
(6) 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;
(7) petitioner’s trial counsel was constitutionally ineffective for failing to
inform petitioner of a potential lesser included offense;
(8) the trial court violated petitioner’s right to due process by failing to
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consider probation as a possible sentence;
(9) 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”;
(10) trial counsel was constitutionally ineffective by failing to object to the
admission of petitioner’s blood as evidence;
(11) 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;
(12) trial counsel was constitutionally ineffective for failing to call detective
Gralinski as a witness;
(13) trial counsel was constitutionally ineffective for failing to object to the
definition of “unconscious” in the jury instructions;
(14) 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;
(15) trial counsel was constitutionally ineffective for failing to seek dismissal
of all 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;
(16) 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”;
(17) the judge presiding over petitioner’s post conviction proceedings violated
petitioner’s right to due process by refusing to recuse herself;
(18) 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”;

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(19) 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”;
(20) 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.
Each of these claims either fails on its face or has a procedural defect. Petitioner
admits that he raised only two issues on direct appeal: (1) Wis. Stat. § 940.225(2)(d) is
unconstitutionally overbroad on its face; and (2) the evidence was insufficient for the jury
to find that petitioner did not have consent to take nude photographs. State v. Schroeder,
2010 WI App 46, ¶ 6, 2010 WL 532968, at *1 (Feb. 17, 2010). He raised many more
claims in the post conviction motion he brought in state court under Wis. Stat. § 974.06,
arguing that appellate counsel was constitutionally ineffective for failing to raise those
claims, but the Wisconsin Court of Appeals concluded that he had forfeited most of the
claims by failing to develop an argument showing why he believed he was entitled to relief.
The court noted that
[petitioner’s] motion 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.
Schroeder was required to set forth with particularity facts showing that
postconviction counsel's performance was both deficient and prejudicial.
While Schroeder's motion catalogues trial counsel's alleged deficiencies, it fails
to explain why or how postconviction counsel erred by failing to raise these
issues. By omitting any factual assertions concerning, for example, the content
of his discussions with postconviction counsel about which issues were viable
or postconviction counsel's stated reasons for not raising certain issues,
Schroeder's allegations of deficient performance are merely conclusory. Nor
has Schroeder demonstrated how he would prove postconviction counsel's
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deficient performance at an evidentiary hearing. Given the strong presumption
that postconviction counsel rendered effective assistance, Schroeder's motion
fails to establish a reason sufficient to overcome the procedural bar.
* * *
With regard to his due process and sentencing claims, Schroeder failed to
allege any reason explaining why they were not raised earlier, and he is
procedurally barred from raising them now.
State v. Schroeder, No. 2014AP1388, 2016 WL 8606267, at *1 and n. 3 (Wis. Ct. App.
May 18, 2016) (alterations, citations and internal quotations omitted). The state court of
appeals considered and rejected on the merits petitioner’s challenges to the fairness of the
post conviction proceedings.
When a petitioner has pursued his state court remedies but failed to properly present
his claims to the state courts along the way, his claims may be barred by the doctrine of
“procedural default.“ Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). That doctrine
bars a federal court 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 independent of the federal question
and adequate to support the judgment. Perruquet, 390 F.3d at 514; Moore v. Bryant, 295
F.3d 771, 774 (7th Cir. 2002); Chambers v. McCaughtry, 264 F.3d 732, 737-38 (7th Cir.
2001). A state procedural ground is “adequate” if it is “firmly established and regularly
followed.”

Beard v. Kindler, 558 U.S. 53, 60 (2009) (internal quotations omitted).

If a petitioner has procedurally defaulted a claim, a federal court cannot reach the

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merits of that claim unless the petitioner demonstrates (1) cause for the default and actual
prejudice 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)). Because the Wisconsin Court of Appeals rejected many
of petitioner's claim on procedural grounds, those claims must be dismissed unless petitioner
can show that under the circumstances of this case, he should not be prevented from
pursuing them on the ground of procedural default. I will give petitioner an opportunity to
make that showing before deciding whether to dismiss those claims.
Petitioner’s remaining claims fail on the merits. It is not clear whether petitioner is
still asserting a claim that Wis. Stat. § 940.225(2)(d) is unconstitutional on its face. His
claim in this court seems to be that the statute is unconstitutional under the First
Amendment as applied to him. Regardless which theory petitioner means to assert, the claim
has no merit. On direct appeal, petitioner’s theory was that § 940.225(2)(d) was overbroad
and facially invalid because “an individual in a committed sexual relationship who induces
one's sleeping partner to wake up for consensual sex by touching his or her intimate parts
could be guilty of sexual assault.” Schroeder, 2010 WI App 46 at ¶ 6. The court of appeals
did not identify petitioner’s constitutional theory, but presumably he was arguing that the
conduct described would be protected under the due process clause as a form of sexual
intimacy.
As the state court of appeals noted, the overbreadth doctrine does not apply outside
the First Amendment context. Vrljicak v. Holder, 700 F.3d 1060, 1062 (7th Cir. 2012)

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(citing Washington State Grange v. Washington State Republican Party, 552 U.S. 442,
449–50 & n. 6 (2008); United States v. Salerno, 481 U.S. 739, 745 (1987)). In other
contexts, a party may challenge the constitutionality of a statute only as applied to him. Id.
Although petitioner says that the victim was his girlfriend, he does not allege that he touched
her in order to wake her, so the situation he identified on appeal does not apply to him. As
petitioner’s appellate counsel rightly concluded, an as-applied challenge would have been
unsuccessful because the jury found that petitioner’s girlfriend did not consent to plaintiff’s
conduct and the constitutional right of sexual privacy is limited to consensual conduct.
Lawrence v. Texas, 539 U.S. 558, 578 (2003). (Although petitioner says that the conduct
was consensual, he does not challenge the sufficiency of the evidence supporting the jury’s
finding to the contrary.)
Petitioner’s alternative argument that § 940.225(2)(d) is invalid under the First
Amendment is frivolous. The First Amendment protects the right to speak and express ideas.
There is no plausible argument that it protects nonconsensual sexual activity with an
unconscious person.
This leaves petitioner’s challenges to his post conviction proceedings. Generally,
errors in state post conviction proceedings do not provide a basis for redress under § 2254.
Flores-Ramirez v. Foster, 811 F.3d 861, 866 (7th Cir. 2016). There is an exception in this
circuit if “state collateral review violates some independent constitutional right.”

Id.

(internal quotations omitted).
The only claim that might fall under the exception is the claim that the judge who

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presided over the post conviction proceedings was biased against petitioner. However,
petitioner’s allegations do not support this claim. He alleges that the judge made a number
of negative statements, such as that his First Amendment argument “was a waste of time”
and that everything he wrote in a letter to the court is “wrong” and “100% backwards”; the
judge appointed a lawyer to represent petitioner while the lawyer was serving as “a
supplemental court commissioner”; the judge refused to appoint a third attorney for
petitioner after the first two withdrew because of an inability to get along with petitioner;
and the judge interrupted petitioner many times during the hearing.
“Recusal is required when, objectively speaking, the probability of actual bias on the
part of the judge or decisionmaker is too high to be constitutionally tolerable.” Rippo v.
Baker, 137 S. Ct. 905, 907 (2017) (internal quotations omitted). Recusal is not required
simply because the judge has issued adverse rulings against a litigant or expressed negative
opinions about his case. Liteky v. United States, 510 U.S. 540, 555 (1994) ("[O]pinions
formed by the judge on the basis of facts introduced or events occurring in the course of the
current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality
motion unless they display a deep-seated favoritism or antagonism that would make fair
judgment impossible."); United States v. Diekemper, 604 F.3d 345, 352 (7th Cir. 2010)
(“[T]he mere fact that a judge forms a negative opinion of a litigant during the course of a
proceeding does not, by itself, constitute bias.”). The statements petitioner cites may show
that the judge believed that some of petitioner’s claims lacked merit, but they do not show
“a deep-seated . . . antagonism” against petitioner, so they do not support his claim.

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Petitioner’s allegation that the judge denied his request for a third court-appointed
lawyer is a nonstarter because “[t]he postconviction petitioner has no constitutional right
to counsel.” Williams v. Pennsylvania, 136 S.Ct. 1899, 1921 (2016).
Finally, the state court of appeals addressed petitioner’s allegation that there was a
conflict of interest because one of his appointed attorneys was a supplemental court
commissioner: “Explaining that the attorney was a limited-purpose commissioner not on the
county's payroll, the judge determined this created ‘no conflict of interest whatsoever’ and
did not affect her ability to act impartially. Nothing in the record contradicts the judge's
determination of her own impartiality.” Schroeder, 2016 WL 8606267, at *2. Petitioner
includes no allegations in his petition that undermine the court’s analysis and I see no way
that any potential professional relationship the judge might have had with the defense
attorney would show that the judge was likely to be biased against petitioner. Even without
giving the Wisconsin Court of Appeals the deference it is due under 28 U.S.C. § 2254(d),
I see no error in its decision. United States v. Morrison, 153 F.3d 34, 48 (2d Cir.1998)
(recusal not required when judge's spouse had business relationship with defendant); Wu v.
Thomas, 996 F.2d 271, 275 (11th Cir.1993) (recusal not required when judge was adjunct
professor for defendant university); Olmstead v. CCA of Tennessee, LLC, 2008 WL
5216018, at *3 (S.D. Ind. 2008) (Hamilton, J.) (judge not required to recuse himself when
one side was represented by law firm where judge had practiced and one lawyer had been
judge’s law clerk); Clayton v. Sklodowski, 1987 WL 11834, at *1 (N.D. Ill. 1987) (“[A]
judge is not required to remove himself from a case simply because it involves a party whom

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he knows professionally.”). See also United States v. Murphy, 768 F.2d 1518, 1537 (7th
Cir. 1985) (“[A] judge need not disqualify himself just because a friend—even a close
friend—appears as a lawyer.”).

ORDER
IT IS ORDERED that
1. The following claims in Ronald Schroeder’s petition for a writ of habeas corpus
are DISMISSED WITH PREJUDICE:
•

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.

2. As to petitioner’s remaining claims, he may have until June 9, 2017, to show cause
why the claims should not be dismissed under the doctrine of procedural default.

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3. If petitioner does not respond by June 9, I will dismiss all claims with prejudice.
Entered this 16th day of May, 2017.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

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