Cholka, Phillip et al v. Dittmann, Michael

Filing 3

ORDER that Petitioner Phillip Cholka has 30 days from the date of this order to file a supplement to his petition showing why his petition should not be dismissed as barred by the doctrine of procedural default. Signed by District Judge Barbara B. Crabb on 12/7/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PHILLIP CHOLKA,
OPINION AND ORDER
Petitioner,
17-cv-787-bbc
v.
MICHAEL DITTMANN,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner Phillip Cholka has filed a pro se petition for a writ of habeas corpus
under 28 U.S.C. § 2254 in which he challenges an amended judgment of conviction
entered on December 1, 1999 and amended on January 23, 2008, by the Circuit Court
for Jackson County, Wisconsin, on counts of criminal damage to property (over $1,000)
and resisting or obstructing an officer, in Case No. 1999CF121.

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.
Although the petition is difficult to follow, I understand petitioner to be raising
the following grounds for relief based on newly-discovered evidence: (1) the prosecutor
committed misconduct by charging him with a felony instead of a misdemeanor; (2)
petitioner received too high a sentence; (3) petitioner received ineffective assistance from
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is trial counsel; and (4) petitioner received ineffective assistance from appellate and post
conviction counsel, who failed to raise ineffective assistance of trial counsel as a ground
for appeal.

From the information contained in the petition, its attachments and

Wisconsin’s online court records, it appears that petitioner’s claims are barred by the
doctrine of procedural default.

However, I will allow petitioner an opportunity to

overcome his default by filing a supplement to his petition showing cause for the default
and actual prejudice, or showing that the court’s failure to consider the claim would result
in a fundamental miscarriage of justice.

OPINION
In October 1999, petitioner was accused of kicking out the rear, left passenger-side
window of a law enforcement vehicle and causing more than $1,000 in damage.

He

entered a plea of guilty to those charges and was sentenced on December 1, 1999. With
respect to the criminal property damage count, the sentencing court ordered restitution, a
10-year stayed prison sentence and 10 years of probation with several conditions. The
conviction was affirmed on appeal in 2001.

On January 23, 2008, the circuit court

ordered execution of the sentence.
Petitioner alleges that in 2016, he learned for the first time through a private
investigator that the repairs for the window cost less than $1,000, a fact that if known at
the time of conviction would have resulted in a different outcome in his case. On August
25, 2016, the circuit court denied his subsequent motions: (1) for a new trial; (2) to
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modify his sentence; and (3) to vacate and set aside his conviction. Plaintiff filed an
appeal on December 12, 2016. The Wisconsin Court of Appeals construed the motions
as post conviction motions under Wis. Stat. § 974.06 and denied them as untimely
because he filed his notice of appeal after the November 23, 2016 statutory deadline (or
more than 90 days after the circuit court’s order denying the motions).
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 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:

petitioner presented his

claims to the state courts, but the court of appeals dismissed them because he filed his
appeal too late. A late filing is a procedural ground that is independent of the merits of
his claims. Accordingly, his 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. 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
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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); Schlup v. Delo, 513 U.S. 298, 327
(1995)).
Because procedural default is an affirmative defense, petitioner 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 there was no point to serving the defendants
with process, forcing them to engage counsel, and then waiting for the inevitable motion
to dismiss.”). That standard is met in this case.
Therefore, petitioner will be allowed an opportunity to overcome his default by
showing: (1) what cause he may have had for filing his appeal of his post conviction
motions after the statutory deadline and what prejudice he will suffer if this court fails to
consider his claims; or (2) whether a failure to review his claims will constitute a
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fundamental miscarriage of justice because he is actually innocent of the conviction in
case number 1999CF121. Because any response will be considered as a “supplement” to
his petition for a writ of habeas corpus, petitioner 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). Petitioner may have 30 days
to file the supplement. If he files the supplement, the court will determine whether he
may proceed with his claims or whether they should be dismissed as procedurally
defaulted.

If petitioner fails to file a supplement within 30 days, his claims will be

dismissed as procedurally defaulted.

ORDER
IT IS ORDERED that
1.

Petitioner Phillip Cholka has 30 days from the date of this order to file a

supplement to his petition showing why his petition should not be dismissed as barred by
the doctrine of procedural default.
2. If petitioner does not respond to this order within 30 days, the court will

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dismiss the petition as barred by the doctrine of procedural default and close this case.
Entered this 7th day of December, 2017.

BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

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