Alexander, Ricky et al v. Boughton, Gary

Filing 26

ORDER denying as moot Ricky N. Alexander's motions for permission to transfer to medium custody, Dkt. 16 and Dkt. 18 . The respondent has until April 10, 2019, to submit supplemental briefing on the merits of Alexander's claims. Alexander may have until April 24, 2019, to file a response. Signed by District Judge James D. Peterson on 3/27/2019. (jef),(ps)

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

RICKY N. ALEXANDER,
Petitioner,

OPINION and ORDER

v.

17-cv-786-jdp

GARY BOUGHTON,
Respondent.

Pro se petitioner Ricky Alexander, a state prisoner incarcerated at the Wisconsin Secure
Program Facility, seeks a writ of habeas corpus under 28 U.S.C. § 2254. He challenges his 2011
state-court conviction for two counts of sexual assault of a minor, asserting nine grounds for
relief. The state contends that five of Alexander’s claims are procedurally defaulted. It did not
brief the merits of those claims. Because I conclude that Alexander did not default on these
claims, I will order the state to provide additional briefing on the merits.
Also before me are Alexander’s motions for permission to transfer to medium custody.
Dkt. 16 and Dkt. 18. Alexander now says that court does “not have to rule” on the request to
be transferred. Dkt. 25, at 4. I take Alexander to mean that he no longer needs the relief sought
in his motions, so I will deny the motions as moot.

ANALYSIS
After a mistrial, Alexander was retried and convicted on April 1, 2011. He was
appointed appellate counsel, who filed a no-merit brief under Wis. Stat. § 809.32, Dkt. 14-2,
which is Wisconsin’s procedure for implementing Anders v. California, 386 U.S. 738 (1967).
Alexander responded, identifying several issues that he believed should be addressed on appeal.

Dkt. 14-3. The Wisconsin Court of Appeals agreed with counsel that there was no arguable
merit to any appealable issues and affirmed the conviction. Dkt. 15-5. Alexander filed a petition
for review with the Wisconsin Supreme Court, Dkt. 14-5 and Dkt. 14-6, which was summarily
denied. Dkt. 14-7. He then filed a pro se motion for postconviction relief under Wis. Stat.
§ 974.06, which raised several issues that had already been raised during the no-merit
proceedings. The court of appeals held that the claims were procedurally barred by Wis. Stat.
§ 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994).1
Dkt. 14-11.
Based on this litigation history, the state contends that many of the issues raised in
Alexander’s habeas petition are procedurally defaulted. First, the state contends that Alexander
did not fairly present his first ground for relief, violation of the Double Jeopardy Clause, to the
state judiciary. It argues that although Alexander raised a double jeopardy claim in response to
his lawyer’s no-merit brief, he did not raise it in his petition for review to the Wisconsin
Supreme Court. Instead, Alexander asked the Wisconsin Supreme Court to review whether his
trial counsel was ineffective for failing to raise a double jeopardy claim.
An assertion that one’s counsel was ineffective for failing to pursue constitutional issues
is a claim separate and independent from those issues. Lewis v. Sternes, 390 F.3d 1019, 1026
(7th Cir. 2004). That being said, the Court of Appeals for the Seventh Circuit has recognized
two situations where it is nonetheless appropriate for a federal court to review the underlying

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In Escalona-Naranjo, the Wisconsin Supreme Court held 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. Thus, claims that have been or could have been raised on direct appeal or
by prior motion are barred from being raised in a postconviction motion absent a sufficient
reason for not raising the claims earlier. See also State v. Lo, 2003 WI 107, ¶ 44, 264 Wis. 2d
1, 665 N.W.2d 756.

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constitutional claims. First, “where ineffective assistance claims are presented ‘as a means to
reach’ the embedded claims and those claims are the real substance of a petitioner’s challenge,
we will consider them fairly presented.” McGee v. Bartow, 593 F.3d 556, 567 n.9 (7th Cir. 2010)
(citing Malone v. Walls, 538 F.3d 744, 755 (7th Cir. 2008)). Second, when the state court
recognized the embedded claim and denied it on the merits (regardless of whether it was fairly
presented), the claim may be reviewed in federal court. Malone, 538 F.3d at 756.
The first exception applies here. The Wisconsin Court of Appeals considered the double
jeopardy claim and ruled against it on the merits. Dkt. 14-4, at 2. This was the final ruling on
the matter. Alexander then petitioned the Wisconsin Supreme Court for review of that
decision. He referred to this claim as a claim for ineffective assistance of counsel in his petition’s
list of “Issue[s] presented for review.” Dkt. 14-6, at 5. But later, in the heading for this section
of his brief, he included two assertions: (1) that counsel was ineffective for failing to seek
dismissal on double jeopardy grounds; and (2) that “Judges failed to accept partial verdict.” Id.
at 10. The second assertion was a summary of his underlying double jeopardy claim. Alexander
then made arguments and cited cases regarding that underlying claim. Id. at 10–12. Both
federal and Wisconsin state courts construe a pro se litigant’s filings liberally. Haines v. Kerner,
404 U.S. 519, 520–21 (1972) (per curiam); State v. Romero-Georgana, 2014 WI 83, ¶ 69, 360
Wis. 2d 522, 557, 849 N.W.2d 668, 685. And in this case, when the petition is viewed as a
whole and in the context of the order it was appealing, it’s clear that Alexander was seeking a
ruling on the underlying double jeopardy claim. The claim is not barred from federal habeas
review.
The state next contends that Alexander’s second, fourth, and fifth grounds for relief—
all ineffective assistance of trial counsel claims—are procedurally defaulted because the state

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court dismissed them under an adequate and independent state procedural rule. The state
argues that Alexander first raised these claims in his pro se § 974.06 motion, that the court of
appeals held that they were barred under Escalona-Naranjo for his failure to raise them during
the no-merit appeal, and that these claims are therefore barred from federal habeas review. The
state’s arguments fail for two reasons.
First, the state is incorrect when it asserts that Alexander first raised these claims in his
§ 974.06 motion. All these claims previously appeared in Alexander’s brief in opposition to his
attorney’s no-merit brief. See Dkt. 14-3, at 12–15, 42–48, 53–54. Alexander was precluded
from raising those claims again in a subsequent § 974.06 motion, but procedural bars imposed
after a claim was properly exhausted do not bar federal review. See Page v. Frank, 343 F.3d 901,
907 (7th Cir. 2003) (“[f]ederal review is precluded only by procedural forfeitures, not by res
judicata concerns”) (quoting Patrasso v. Nelson, 121 F.3d 297, 301 (7th Cir.1997)).
Second, even if the state were correct that Alexander had failed to raise these claims on
direct appeal, they would still be subject to federal review. A claim is defaulted when the state
court denied it based on an “adequate and independent” state procedural rule. Johnson v.
Thurmer, 624 F.3d 786, 789 (7th Cir. 2010). In this case, the state contends that EscalonaNaranjo is such a rule. But the Court of Appeals for the Seventh Circuit has repeatedly held
that Escalona-Naranjo is not an adequate basis for rejecting a claim for ineffective assistance of
counsel when the default was caused by the petitioner failing to raise that claim during a nomerit appeal. Johnson v. Thurmer, 624 F.3d 786, 789–91 (7th Cir. 2010); Page, 343 F.3d at 907–
09 (7th Cir. 2003). Because Alexander’s appellate counsel filed a no-merit brief in this case,

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any ineffective assistance of counsel claims that Alexander failed to raise during the no-merit
proceeding would not be procedurally defaulted.2
Finally, the state contends Alexander defaulted on his ninth ground for relief, ineffective
assistance of postconviction counsel. But the state’s only argument is that the Wisconsin Court
of Appeals ruled against the claim on the merits. Dkt. 24, at 17–18. This does not support the
state’s contention that Alexander defaulted on the claim. On the contrary, it suggests he
properly exhausted it.
In sum: none of Alexander’s claims are barred from federal habeas review. Because the
state briefed the merits of only four of the nine grounds raised in Alexander’s habeas petition,
I will order the state to provide additional briefing on the merits of the other five claims. I will
also give Alexander a short time to respond to the state’s arguments.

2

In a different case before me, Redman v. Meisner, No. 15-CV-353-JDP, 2018 WL 5832139, at
*5 (W.D. Wis. Nov. 7, 2018), the state argued that the court of appeals’ holdings in Page and
Johnson no longer apply after the Wisconsin Supreme Court’s decision in State v. Allen, 2010
WI 89, 328 Wis. 2d 1, 786 N.W.2d 124. But until the Court of Appeals for the Seventh
Circuit revisits the issue, I will continue to follow existing circuit precedent. See Redman, 2018
WL 5832139, at *5.

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ORDER
IT IS ORDERED that:
1. Plaintiff Ricky N. Alexander’s motions for permission to transfer to medium
custody, Dkt. 16 and Dkt. 18, are DENIED as moot.
2. The respondent has until April 10, 2019, to submit supplemental briefing on the
merits of Alexander’s claims. Alexander may have until April 24, 2019, to file a
response.
Entered March 27, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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