Davis v. Douma, 2013AP1349.
| Decision Date | 16 December 2014 |
| Docket Number | No. 2013AP1349.,2013AP1349. |
| Citation | 859 N.W.2d 628 (Table),359 Wis.2d 674 |
| Parties | Bruce T. DAVIS, Petitioner–Appellant, v. Tim DOUMA, Warden, New Lisbon Correctional Institution and State of Wisconsin, Respondents–Respondents. |
| Court | Wisconsin Court of Appeals |
Bruce T. Davis, pro se, appeals an order dismissing his petition for a writ of habeas corpus and an order denying his motion to reconsider. We affirm.
¶ 2 The Department of Corrections alleged that, while Davis was serving a term of extended supervision for three burglaries, he violated the terms of his supervision on several occasions. Following an evidentiary hearing at which Davis was represented by counsel, an administrative law judge found that the Department proved the allegations that, on August 31, 2011, Davis entered Meghan S.L.'s home without her consent, grabbed her, and demanded money.2 The administrative law judge concluded that Davis's “violations are serious and warrant revocation.”
¶ 3 Davis appealed the administrative law judge's decision to the administrator of the Division of Hearings and Appeals. The administrator upheld the decision, concluding: “given that Davis is on supervision for three burglaries ... his violations warrant revocation to protect the community from further crime.”
¶ 4 Represented by new counsel, Davis petitioned the Milwaukee County circuit court for certiorari review of the revocation decision. The circuit court affirmed, and Davis did not appeal.3
¶ 5 Davis then launched the instant litigation. Proceeding pro se, he petitioned the circuit court for a writ of habeas corpus, naming as respondents the State of Wisconsin and the warden of the institution where Davis is confined. He alleged that the attorney who represented him in the certiorari review proceeding was ineffective for failing to challenge the effectiveness of the attorney who represented him in the revocation proceedings. He went on to allege that the attorney who represented him during the revocation proceedings was ineffective by failing to prepare for the hearing with an adequate investigation and by failing to make appropriate objections in response to the evidence presented. Davis asserted that, but for the alleged ineffectiveness of the lawyer who represented him in the revocation proceedings, the administrative law judge “more th[a]n likely would have dismissed the charges” and would have concluded that the “evidence against [Davis] was clearly insufficient to revoke [his] supervision.”
¶ 6 The State in response moved to dismiss the petition, arguing that the allegations lacked merit. Further, the State argued that the proceedings were moot because, following the revocation of Davis's extended supervision, a jury found Davis guilty of the crimes underlying the revocation decision, and his convictions alone are sufficient to support revocation of his extended supervision. The State attached more than 150 pages of documents to its motion, including the transcript of the revocation hearing, the decision of the administrative law judge revoking Davis's extended supervision, the decision of the Administrator of the Division of Hearings and Appeals sustaining that decision, the circuit court decision affirming the Administrator, and circuit court docket entries reflecting Davis's criminal convictions for offenses he committed against Meghan S.L.
¶ 7 Davis filed a reply brief contending that the proceedings for a writ of habeas corpus were “not rendered moot by virtue of petitioner's criminal convictions” because he was pursuing an appeal of his criminal convictions. Thus, in his view, any claim that the Department would revoke his extended supervision based on those convictions was merely speculative. The circuit court entered a decision and order dismissing Davis's petition. The circuit court also denied his motion to reconsider, and he now appeals.
¶ 8 Davis petitioned for a writ of habeas corpus to address his claims that he received ineffective assistance of counsel. “Whether writ of habeas corpus is available to the party seeking relief is a question of the law that we review de novo. ” State v. Pozo, 2002 WI App 279, ¶ 6, 258 Wis.2d 796, 654 N.W.2d 12.
¶ 9 We first dispose of the claim based on the alleged ineffectiveness of the attorney who represented Davis during the certiorari proceedings. “[U]nder the Sixth Amendment [to the United States Constitution] the ‘right to counsel’ means the right to effective assistance of counsel.” See A.S. v. State, 168 Wis.2d 995, 1003 n. 4, 485 N.W.2d 52 (1992). Where Wisconsin provides a statutory right to counsel, that right also includes the right to effective assistance of counsel. See State ex rel. Schmelzer v. Murphy, 201 Wis.2d 246, 253, 548 N.W.2d 45 (1996). As the State explains, however, Davis did not have a statutory or a constitutional right to counsel for certiorari review of an administrative decision revoking community supervision. See State ex rel. Griffin v. Smith, 2004 WI 36, ¶¶ 22, 31, 270 Wis.2d 235, 677 N.W.2d 259. Therefore, he may not obtain any relief based on a claim that the lawyer who assisted him in that review was allegedly ineffective.4 See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ().
¶ 10 Davis did, however, have a right to counsel during the revocation hearing. See Griffin, 270 Wis.2d 235, ¶ 3, 677 N.W.2d 259. A petition for a writ of habeas corpus is the mechanism for claiming that counsel was ineffective during that hearing. See State v. Ramey, 121 Wis.2d 177, 178, 182, 359 N.W.2d 402 (Ct.App.1984). Accordingly, we turn to the question of whether the circuit court properly dismissed the allegations that Davis received ineffective assistance from the lawyer who represented him in the revocation proceedings.
¶ 11 A defendant alleging ineffective assistance of counsel must prove both that counsel's performance was deficient and that the deficiency prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove deficient performance, the defendant must show “that counsel's conduct falls below an objective standard of reasonableness.” State v. Love, 2005 WI 116, ¶ 30, 284 Wis.2d 111, 700 N.W.2d 62. To prove prejudice, the defendant must show “ ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ” Id. (citation omitted). Whether counsel's performance was deficient and whether the deficiency was prejudicial are questions of law for our independent review. State v. Johnson, 153 Wis.2d 121, 128, 449 N.W.2d 845 (1990).
¶ 12 When a defendant claims that counsel was ineffective, the defendant must seek to preserve counsel's testimony in an evidentiary hearing. See State ex rel. Panama v. Hepp, 2008 WI App 146, ¶ 22, 314 Wis.2d 112, 758 N.W.2d 806. The circuit court may deny the claim without a hearing, however, “ ‘if the record conclusively demonstrates that the defendant is not entitled to relief.’ ” State ex rel. Kyles v. Pollard, 2014 WI 38, ¶ 47, 354 Wis.2d 626, 847 N.W.2d 805 (). This is such a case.
¶ 13 When a court determines that a litigant received ineffective assistance of counsel, the remedy “is to restore the [litigant] to the position he or she would have occupied but for counsel's ineffectiveness.” See id., ¶ 32. Therefore, if Davis were to prevail in his petition for a writ of habeas corpus and prove that he received ineffective assistance from his revocation counsel, his remedy would be a new revocation hearing. See State v. Cooks, 2006 WI App 262, ¶¶ 2, 66, 297 Wis.2d 633, 726 N.W.2d 322 (). The State shows, however, and Davis does not dispute, that after the revocation proceedings ended, a jury found him guilty of the crimes underlying the revocation of his supervision. His claims of counsel's ineffectiveness during the revocation proceedings are therefore rendered moot. See State ex rel. Olson v. Litscher, 2000 WI App 61, ¶ 3, 233 Wis.2d 685, 608 N.W.2d 425 (). This is so because, under Wis. Admin. Code § HA 2.05(6)(f), a violation of the rules of extended supervision “is proven by a judgment of conviction arising from conduct underlying an allegation.” Thus, at a new revocation hearing, the Department of Corrections would offer the judgment of conviction arising from the crimes against Meghan S.L. The Department would thereby prove that Davis violated the terms of his extended supervision, and revocation of that supervision would follow.5 Because a second revocation hearing would include proof of Davis's violations and result again in revocation of his supervision, the record shows that Davis is not entitled to any relief based on his claims that counsel was ineffective during his first hearing.
¶ 14 Davis disagrees. He asserts that the Department cannot rely on his criminal convictions to prove that he violated the rules of extended supervision because he has taken steps to appeal those convictions. In his view, the convictions are therefore “non-final” and “tentative.” Davis is wrong. Criminal convictions become final when the circuit court enters a judgment of conviction. See State v. One 1997 Ford F–150, 2003 WI App 128, ¶ 20, 265 Wis.2d 264, 665 N.W.2d 411. “The fact that criminal litigants have the right to appeal from a judgment of conviction does not make the judgment any less final.” Id. Moreover, Davis cites no Wisconsin authority that renders Wis. Admin. Code § HA 2.05(6)(f) inapplicable to judgments of conviction that are in the appellate pipeline. Indeed, the plain language of the regulation imposes no such limitation.
¶ 15 We turn to Davis's...
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