Carlson v. Jess

Decision Date04 September 2007
Docket NumberNo. 06C0481.,06C0481.
Citation507 F.Supp.2d 968
PartiesMatthew S. CARLSON, Petitioner, v. Cathy JESS, Respondent.
CourtU.S. District Court — Eastern District of Wisconsin

Robin Shellow, Urszula K Tempska, The Shellow Group, Milwaukee, WI, for Petitioner.

Katherine Lloyd Tripp, Wisconsin Department of Justice, Office of the Attorney General, Madison, WI, for Respondent.


LYNN ADELMAN, District Judge.

Petitioner Matthew S. Carlson, a Wisconsin state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his 2002 conviction of first-degree sexual assault of a child, for which he was sentenced to fifty-five years in prison. Petitioner argues that the trial court's denial of his motion to substitute counsel and for a continuance violated his Sixth Amendment right to counsel of choice and his Fourteenth Amendment right to due process, and that the state court of appeals's affirmance of the trial court's decision was unreasonable.


In 2002, a fifteen-year-old boy, G.J., reported to police that in 1996 and 1998, petitioner sexually assaulted him. Soon after, the Ozaukee County District Attorney charged petitioner with several counts of sexual assault of a child. Petitioner retained attorney Randall Kaiser to represent him, and at petitioner's May 20, 2002 arraignment, the trial court set the case for trial on August 27, 2002. The parties agreed that the trial would take two days at most. Petitioner did not exercise his right to request a speedy trial.

In the weeks leading up to the trial, petitioner twice asked for a brief continuance, once for additional preparation time and once to permit Kaiser's co-counsel to assist him at trial. The trial court denied both requests, citing its calendar and the fact that the complainant was a juvenile. In the meantime, petitioner's faith in his counsel deteriorated. On August 17, 2002, petitioner notified Kaiser that he had hired Attorney Robin Shellow to replace him. On August 19, Kaiser moved to withdraw as counsel. On August 23, petitioner, assisted by Shellow, moved to substitute Shellow for Kaiser as his counsel, conditioned upon the court's adjourning the trial date so that Shellow could prepare for trial. In support of the motion, Shellow stated that she needed to conduct additional investigation and interviews and to retain an expert.1 She stated that she wished to explore why G.J. did not report the assaults until four to six years after they allegedly occurred and whether he had a motive to fabricate the accusations. She also wanted to review the techniques that social workers and police employed when they interviewed G.J. She noted that G.J. resided at Rawhide Boys Ranch, a privately-operated facility for seriously delinquent boys, and that G.J. had first accused petitioner of sexual assault while there. She stated that Rawhide's treatment approach was outside the norm and expressed concern about the counseling techniques that led to G.J.'s accusation.

The trial judge did not sit during the week of August 19 and thus did not promptly address Kaiser's motion to withdraw or petitioner's motion for substitution and a continuance. On August 26, the day before the trial was scheduled to begin, the judge returned to the bench and held a hearing. At the hearing, Kaiser stated:

I am in a very tough position I think if I am not allowed to withdraw. As I said, our communication has completely broken down. We have differences in opinions, and I know they don't feel confident, he and his family. I think it's better for everyone if I withdraw.

I don't feel that the state is prejudiced by allowing me to withdraw. It's my understanding that they really only have one citizen witness. This is a case that allegedly occurred approximately six years ago and was not charged until April of this year. So I don't think Attorney Shellow or I — I don't want to speak for her, but I don't think we are requesting a long adjournment. This is the first request that Mr. Carlson has made for a new attorney.

. . . . .

Mr. Carlson is in custody. He understands that if his wish for new counsel is granted and there is an adjournment he will remain in custody.... I think it would be in everyone's best interests to try this case once and get it over with. Mr. Carlson is not doing this to delay the proceedings unnecessarily. His family is not one of extreme means. They would not spend money to hire two counsels just to delay the process. They feel that they have to do what's in his best interests.

(Answer Ex. L at 3-5.) The prosecutor opposed Kaiser's request, stating that she had "grave concern for the withdrawal of this attorney given the fact that the proposed attorney ... has already indicated in papers that she wouldn't be able to proceed tomorrow," (id. at 6), and citing the complainant's rights.

The court stated that "these things arise frequently in criminal cases" and noted that it had denied two earlier requests for adjournments because it was "a serious felony case." (Id. at 9.) The court conceded that "the defendant has a right to counsel," but stated:

I think here there are paramount issues. And the first issue is the orderly administration of this Court. I said last week or on the 14th that it would be months before this case got back on the trial calendar. And these late motions to withdraw, I am not inclined to grant it — in fact, I am not going to, grant the motion to withdraw. This case is going to trial tomorrow. I don't see any reason why it can't go. This Court is prepared to try it.

I also am concerned that you have a young victim in this. Not as young as some the Court sees, but young. And I don't see anything in the motion papers that were filed by Attorney Shellow that is of a magnitude that causes the Court to hesitate and say this Court can't go to trial tomorrow. I am ordering it to go ahead.

(Id. at 9-10.)

Shellow requested to be heard and stated that the case involved factual issues that Kaiser had not explored and constitutional issues that he had not researched. She stated that she wished to explore the juvenile's motives for making the allegation and to engage an expert regarding a number of questions, including questions raised by the juvenile's reporting of the assaults years after they allegedly occurred. She said she also wished to examine possible improper police coaching of the juvenile and a Miranda issue. She further stated that Kaiser's failure to explore any of these matters raised issues of "ineffective assistance of counsel." (Id. at 11.) The court's only response was: "Are you prepared to try this case tomorrow?"

SHELLOW: I am not prepared.

THE COURT: Then I am not granting the motion ... I understand the problems, but I find that a case that's been set 90 days out, and then to come in the day before and say I want to withdraw and I want it taken off the Court's calendar, is a serious problem for administration of this Court. And I realize there are issues. But I think Mr. Carlson can get a fair trial. His attorneys have been working on this. They have been in court numerous times. And I think there are other issues that have to be factored into the analysis, and I have done that, and I am denying the request.

(Id. at 13.)

The next day, before the trial commenced, petitioner asked to address the court. He stated:

I have tried on numerous occasions to convey my concerns to Mr. Kaiser, to no avail. I have been met with argumentative comments, I have been met with the impression to take a plea bargain which I've signed several papers stating I would not, and that seems to be our whole matters [sic]....

I have not received one piece of paper concerning this case since I have been incarcerated. I have not one sheet of paper about this case to look back on when I am in jail. Also, one of [Kaiser's] associates, who I will not name, when I met the first time I could swear under oath I have smelled liquor on his breath. I am not — I am not gonna mention any names, I didn't want to risk a lawsuit. And also I have talked to Mr. Kaiser several times about different witnesses that obviously he doesn't feel I need, and I have mentioned to him and so have my parents and my wife about possibly different people we could bring, prior to May 23rd or whatever that was, and I still have not heard nothing about that either.

(Answer Ex. M at 23.)

The court responded:

... there are situations where release of counsel is warranted, when there's an ethical dilemma, when there is a situation where the relationship has broken down to the point where there's no communication. But what was presented to me yesterday and what's being presented to me today are differing views of how the case is approached. You have a lawyer who has discussed witnesses with you, you've indicated these witnesses are somebody you want him to talk with. On the other hand, it also appears that he was aware of these witnesses and did not feel that they would help your case here. And that's a strategic decision.

On the other hand, Attorney Shellow in her moving papers and in her presentation to the Court yesterday presented a great deal of possibilities, I'd like to do this, it's possible that this might be done, it's possible that this might be done. Against that the Court has the responsibility, some countervailing responsibilities. One is to administration of this Court ... I have the victim rights obligations that I have to consider, I have to consider a fair trial for you, and I have to consider the administration of this Court's calendar ... I don't have another date that could fit a trial like this in until probably after the beginning of the year ... I also have a young victim, not the youngest as I acknowledged yesterday, who has to have this hanging out over their head. And on balance I denied the request. And I am comfortable with the request, I'm comfortable that Mr. Kaiser can...

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    ...see also Robins v. United States, 404 U.S. 1049, 1052, 92 S.Ct. 721, 30 L.Ed.2d 740 (1972) (Brennan, J., dissenting); Carlson v. Jess, 507 F.Supp.2d 968, 980 (E.D.Wis.2007). One lawyer cannot substitute for another lawyer's skills, experience, and other unquantifiable characteristics. Becau......
  • Carlson v. Jess
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 19, 2008
    ...The district court (Judge Lynn Adelman) agreed with Carlson and granted his petition in a comprehensive opinion. Carlson v. Jess, 507 F.Supp.2d 968 (E.D.Wis.2007). The State now Back in 1996, Carlson was convicted of one count of sexual assault of a boy under the age of 13. At that time, th......
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    • United States
    • Wisconsin Law Journal No. 2008, January 2008
    • May 26, 2008
    ...Seventh Circuit affirmed the granting of a habeas corpus petition last year by U.S. District Court Judge Lynn Adelman. Carlson v. Jess, 507 F.Supp.2d 968 In 2002, Matthew S. Carlson was charged in Ozaukee County Circuit Court with sexually assaulting Gino on two occasions, once in 1996, and......

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