Carter v. Buesgen

• Decision Date: 18 August 2021
• Docket Number: No. 20-3140,20-3140
• Citation: 10 F.4th 715
• Parties: Marvin L. CARTER, Petitioner-Appellant, v. Chris S. BUESGEN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

10 F.4th 715

Marvin L. CARTER, Petitioner-Appellant,

v.Chris S. BUESGEN, Respondent-Appellee.

No. 20-3140

United States Court of Appeals, Seventh Circuit.

Argued May 18, 2021

Decided August 18, 2021

Jorge Benjamin Aguinaga, Attorney, C. Kevin Marshall, Attorney, Jones Day, Washington, DC, for Petitioner-Appellant.

Daniel J. O'Brien, Assistant Attorney General, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before Easterbrook, Brennan, and Scudder, Circuit Judges.

Scudder, Circuit Judge.

Wisconsin inmate Marvin Carter has waited four years and counting to challenge his 2017 sentence on direct appeal in state court. Over these four years Carter has weathered a ten-month transcript delay, three different public defenders, and fourteen extension requests by counsel and the trial court itself. At no point during these four years has a single court in Wisconsin ruled on the merits of Carter's colorable challenge to his sentence. None of this is Carter's fault.

Carter responded to the delay by seeking relief in federal court under 28 U.S.C. § 2254. Although recognizing the inordinate delay Carter has endured in Wisconsin, the district court concluded that Carter had failed to exhaust his state court remedies and dismissed his petition without prejudice. At the very least, the district court added, Carter needed to lodge one final plea for relief with the state court before returning to federal court.

Carter appeals from that dismissal. We confront two issues: whether we have appellate jurisdiction to review the district court's dismissal order and, if so, whether the delay experienced by Carter excuses him from the otherwise applicable statutory exhaustion requirement. We answer both questions in the affirmative, for what Carter has experienced—and, by every indication, will continue to experience—in the Wisconsin trial and appellate courts is extreme and tragic. The intractable delay shows that Wisconsin's appellate process, at least as far as Carter is concerned, is ineffective to protect rights secured by the United States Constitution. So we reverse and remand to allow the district court to rule on the merits of Carter's § 2254 petition without delay.

I

A

Everything began in 2016 when Wisconsin charged Marvin Carter with possessing heroin, cocaine, and other narcotics with intent to deliver and, separately, with possessing a firearm as a convicted felon. Carter proceeded to trial in Milwaukee in 2017, but agreed midtrial to strike a deal with the state. In exchange for dismissal of the cocaine and narcotic drugs charges, Carter pleaded guilty to the heroin and firearm charges. As part of the deal, the state agreed to recommend a six-year sentence.

But the prosecutor backtracked at sentencing, telling the trial court that "in hindsight, I so wish we would have allowed this to proceed through to the end of the trial and let the jury make their verdict because then I would have had four counts on the table today." The prosecutor's expression of regret seemed to strike a chord, as the court sentenced Carter to nine years’ imprisonment—three more than the parties agreed to recommend in the plea agreement. The court entered judgment in July 2017.

Carter then sought to appeal his sentence, contending not only that the prosecutor breached the plea agreement at sentencing, but also that the trial court imposed the nine-year sentence based on inaccurate information—both in violation of his rights under the Fourteenth Amendment's Due Process Clause. Carter's first claim is akin to the one recognized in Santobello v. New York , 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), where the Supreme Court held that a criminal defendant is entitled to relief—in the form of resentencing or an opportunity to withdraw his guilty plea—if the state commits a material breach of a plea agreement in connection with the original sentencing. See id. at 262–63, 92 S.Ct. 495.

As we have recognized in prior cases, the criminal appeal process in Wisconsin is unusual. See Huusko v. Jenkins , 556 F.3d 633, 634–35 (7th Cir. 2009). The first avenue of relief available to a convicted prisoner is the so-called "postconviction motion" filed under Wisconsin Statute § 974.02. See, e.g. , Page v. Frank , 343 F.3d 901, 905–06 (7th Cir. 2003) (describing in detail the Wisconsin statutory scheme); State ex rel. Rothering v. McCaughtry , 205 Wis.2d 675, 556 N.W.2d 136, 137–38 (Wis. Ct. App. 1996). The defendant must alert the trial court that a postconviction motion is coming by filing, within twenty days of sentencing, a notice of intent to pursue postconviction relief. See Wis. Stat. § 809.30(2)(b).

In practice, this notice should trigger a series of obligations on the part of the clerk's office—and, if the defendant requests counsel, the public defender's office—to prepare for the postconviction motion. Operating as intended, the process should go like this: the clerk shares basic information about the case with the public defender's office, and that office, in turn, assigns a lawyer to request the record and to draft the postconviction motion. See Wis. Stat. § 809.30(2). Each step comes with a short and explicit statutory deadline, and the § 974.02 postconviction motion should be filed about five months after the filing of the notice of intent. The motion, like the original notice of intent, must be filed in the trial court. This requirement affords the trial court (and, indeed, the original trial judge) an opportunity to consider any appellate challenge in the first instance. An argument not raised in a § 974.02 postconviction motion is waived on appeal, save for two exceptions not relevant here. See Wis. Stat. § 974.02(2) ; State v. Hayes , 167 Wis.2d 423, 481 N.W.2d 699, 700 (Wis. Ct. App. 1992).

The Wisconsin Court of Appeals plays an important role in the postconviction motion process too, as any request for an extension beyond these statutory deadlines must be filed with and granted by that court. See Wis. Stat. § 809.82(2)(a). This is so even though the trial court rules on the postconviction motion in the first instance.

Our point with all of this is to say that Wisconsin's postconviction review process under § 974.02 is itself complex and likely unfamiliar and counterintuitive to many readers. See Huusko , 556 F.3d at 634–35 ("Wisconsin combines some aspects of direct and collateral review."). For our purposes, though, what matters is that the § 974.02 postconviction motion operates as a prerequisite to accessing the state's direct appeal process. See Morales v. Boatwright , 580 F.3d 653, 656 (7th Cir. 2009) ; see also Page , 343 F.3d at 906 ("If an issue is raised in the § 974.02 motion but relief is denied by the trial court, the defendant then may appeal to the Court of Appeals of Wisconsin."). Down the road, after "the time for appeal or postconviction remedy provided in § 974.02 has expired," the defendant may collaterally attack his sentence. Wis. Stat. § 974.06(1). Of course, if the state process does not result in relief, the defendant may then seek collateral review in federal court under 28 U.S.C. § 2254.

Marvin Carter filed a notice of intent to pursue postconviction relief with the trial court on July 25, 2017—five days after sentencing. In line with the Wisconsin statute, the public defender's office promptly assigned him counsel. So far, so good.

But stagnation soon followed. The clerk and court reporter took ten months to locate and share the trial transcripts that Carter's counsel requested—a step that should have been completed within 60 days. See Wis. Stat. § 809.30(2)(g).

Things only got worse from there. On the day of the deadline to file the § 974.02 postconviction motion, Carter's counsel sought more time. He explained that his heavy caseload prevented him from meeting with Carter or reviewing the case materials. So too did Carter's counsel file a separate motion asking the court to retroactively extend the time to request certain transcripts, as some slipped through the cracks during the initial request process. The Wisconsin Court of Appeals granted both motions in September 2018. By then, over one year had passed since Carter's July 2017 conviction and sentence.

With the benefit of hindsight, we now know that the delay for Carter was just beginning. Carter's counsel followed his first request to extend the deadline to file the postconviction motion with a second. And a third. And a fourth. This pattern continued for months, with Carter's counsel filing a new extension request on each day the prior request was due to expire. By late 2019—more than two years after Carter's July 2017 conviction and sentence—counsel had filed seven requests to extend the motion deadline. The Wisconsin Court of Appeals granted each motion in rote fashion.

B

Trapped by his counsel's recurring extension requests and what he saw as the complicity of the Wisconsin courts in the ongoing delay, Carter turned to federal court. In November 2019 he invoked 28 U.S.C. § 2254 and filed a pro se petition for postconviction relief in the Western District of Wisconsin, raising the same two sentencing challenges he had tried to present to the state trial court.

Section 2254 provides that relief "shall not be granted" unless the petitioner has exhausted the remedies available in state court. 28 U.S.C. § 2254(b)(1)(A). The statute qualifies that rule, however, with exceptions. The petitioner need not exhaust if there is "an absence of available State corrective process" or "circumstances exist that render such process ineffective to protect the rights of the applicant." Id. § 2254(b)(1)(B)(i)–(ii).

Carter acknowledged that he did not exhaust state court remedies. But he was quick to explain to the district court that he had tried to do so but found himself stuck by the endless extensions sought by his counsel and granted by the Wisconsin Court of Appeals. Upon receiving Carter's petition, the district court directed the...