Dumer v. Berge
| Decision Date | 25 August 1997 |
| Docket Number | No. 97-C-61.,97-C-61. |
| Citation | 975 F.Supp. 1165 |
| Parties | Ritchie H. DUMER, Petitioner, v. Gerald BERGE, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Ritchie Dumer, Fox Lake, WI, pro se.
James Friemuth, Asst. Atty. Gen., Madison, WI, for Gerald Berge.
DECISION and ORDER
Ritchie H. Dumer has filed a pro se "Petition for a Writ of Habeas Corpus" pursuant to 28 U.S.C. § 2254 in which he challenges the constitutionality of his August 6, 1985, conviction of two counts of attempted second degree sexual assault, two counts of false imprisonment, and two counts of battery. The petitioner is presently serving a 37 1/5 year sentence for these offenses. The petition will be granted and the writ issued.
By decision and order of February 18, 1997, this court determined that the petition survived preliminary review under Rule 4, Rules Governing Section 2254 Cases, and directed the respondent to answer or otherwise respond to the petition. After receiving the respondent's answer, a scheduling order was entered which directed the parties to file their respective briefs on the issues raised in the petition. The issues are now fully briefed.
A criminal complaint was filed against the petitioner on February 7, 1985, in the circuit court for Dane County. Pursuant to the complaint, Mr. Dumer was charged with seven crimes involving two different victims. The charges in the complaint were as follows: (1) second degree sexual assault, contrary to Wis. Stats. § 940.225(2)(a) (1985-86), based upon the allegation that at approximately 12:45, a.m. on February 5, 1985, the petitioner had nonconsensual sexual contact with Jessica P. by use of force and violence when he fondled her buttocks after he dragged her outside the lobby of an apartment building located on Langdon Street in Madison; (2) false imprisonment, contrary to Wis. Stats. § 940.30 (1985-86), based upon the allegation that on February 5, 1985, the petitioner intentionally restrained Jessica P. without her consent and with knowledge that he lacked the authority to do so; (3) battery contrary to Wis. Stats. § 940.19(1), based on the allegation that during the events recited above, petitioner repeatedly slapped Jessica P. in the face with an open hand, bruising her face and causing pain to her jaw; (4) attempted second degree sexual assault contrary to Wis. Stats. §§ 940.225(2)(a) and 939.32(1) (1985-86), based upon the allegation that at approximately 1:00 a.m. on February 5, 1985, shortly after the alleged sexual assault of Jessica P., the petitioner attempted to have nonconsensual sexual contact with Lauren O. by use of threat of force and violence when he grabbed the victim around her neck as she was walking near Elizabeth Waters dormitory on the University of Wisconsin campus in Madison, dragged her down a hill into a wooded area, punched her in the nose and threatened to kill her if she did not do as he demanded; (5) false imprisonment contrary to Wis. Stats. § 940.30 (1985-86), based upon an allegation that the petitioner intentionally restrained Lauren O., without her consent and with knowledge that he lacked authority to do so, during the events of February 5, 1985, as outlined in (4) above; (6) threatening injury contrary to Wis. Stats. § 943.30 (1985-86), based upon an allegation that petitioner intentionally restrained Lauren O. without her consent and with knowledge that he lacked authority to do so during the events of February 5, 1985; and (7) battery contrary to Wis. Stats. § 940.19(1) (1985-86), based upon an allegation that during the events outlined in (4) above the petitioner punched Lauren O., breaking her nose. In addition, each of the seven charges was accompanied by a repeater allegation pursuant to Wis. Stats. § 939.62(1)(b) (1985-86).
Petitioner waived a preliminary examination on February 14, 1985. On February 21, 1985, the state filed a six-count information which dropped count six of the complaint — the charge of threatening injury to Lauren O. — and reduced count one of the complaint from second degree sexual assault of Jessica P. to attempted second degree sexual assault under Wis. Stats. §§ 940.225(2)(a) and 939.32 (1985-86). A pretrial hearing was held on June 7, 1985, at which time petitioner's trial counsel stated that the reduction of charges set forth in the information reflected a plea agreement between the parties pursuant to which the petitioner was pleading no-contest to the six counts of the information. After engaging in a colloquy with the petitioner about his plea, state circuit court Judge Mark A. Frankel accepted the petitioner's no-contest pleas. Judgment of conviction was entered on August 6, 1985, at which time Judge Frankel sentenced petitioner to prison terms totaling 37½ years, to operate consecutively to an existing sentence.
The petitioner did not file a direct appeal of his conviction under Wis. Stats. § 809.30 (1985-86). However, he did file a pro se motion in the state trial court on August 23, 1993, in which he sought to withdraw his no-contest pleas. He supplemented that motion on September 23, 1993. This collateral proceeding was construed by the state trial court as a motion for post-conviction relief under Wis. Stats. § 974.06 (1993-94). In his state post-conviction motion, Mr. Dumer sought withdrawal of his no-contest pleas on two grounds: (1) he was denied the effective assistance of counsel because his trial attorney did not adequately investigate prior to the plea hearing and withheld exculpatory evidence from Mr. Dumer; and (2) his pleas were not knowingly and voluntarily made.
After conducting an evidentiary hearing on October 18, 1993, and October 26, 1993, Judge Frankel denied the motion on the record; a formal order to this effect was entered on October 29, 1993.
The petitioner filed an appeal from the denial of his post-conviction motion. In addition to seeking review of the two claims presented to Judge Frankel, the petitioner argued that he should also be allowed to withdraw his pleas because his appellate counsel was ineffective in that he failed to file a direct appeal of his conviction or file a "no merit" brief. On August 10, 1995, the Wisconsin court of appeals affirmed Judge Frankel's order denying the petitioner's motion for post-conviction relief and rejected the petitioner's claim that he had received ineffective assistance of appellate counsel. On October 17, 1995, the Wisconsin supreme court denied review.
In the instant petition for a writ of habeas corpus, Mr. Dumer challenges the constitutionality of his confinement on three grounds: (1) his conviction was obtained by a plea of no-contest which was not knowingly and voluntarily made; (2) he was denied the right to appeal due to appellate counsel's ineffectiveness; and (3) he was denied the effective assistance of trial counsel when his attorney entered into a plea agreement without his knowledge and when his attorney "failed to investigate potential exculpatory evidence or eyewitnesses."
Under 28 U.S.C. § 2254(a), "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Moreover, § 2254(b)(1)(A) requires that the petitioner demonstrate that he "has exhausted the remedies available in the courts of the State." It is undisputed that all three of the claims advanced by Mr. Dumer have been exhausted as each of the claims has been presented to the highest state court for a ruling on the merits. United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1131-32 (7th Cir. 1990).
Each of the claims presented in Mr. Dumer's petition has been adjudicated on the merits in state court. In such situations, "a writ of habeas corpus ... shall not be granted ... unless the adjudication of the claim" —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Further, 28 U.S.C. § 2254(e)(1), accords factual determinations by the state court a presumption of correctness which can only be rebutted by clear and convincing evidence.
Mr. Dumer argues that he should be allowed to withdraw his pleas of no-contest and proceed to trial because such pleas were made without an adequate understanding of the nature of the charges to which he was pleading as required under the due process clause of the Fourteenth Amendment. As noted previously in this decision, the Wisconsin trial court and the Wisconsin appellate court each rejected this claim on its merits, and the state supreme court denied review. The respondent argues that this court should reject this claim because the petitioner has not demonstrated that the state's adjudication was (1) contrary to or an unreasonable application of clearly established United States Supreme Court precedent, 28 U.S.C. § 2254(d)(1), or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings, 28 U.S.C. § 2254(d)(2).
According to United States Supreme Court precedent, a defendant's plea of guilty or no-contest must be made knowingly, voluntarily and intelligently, with an understanding of the nature of the charges, the direct consequences of the plea and the trial rights being surrendered. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170-71, 22 L.Ed.2d 418 (1969); Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 1711-13, 23 L.Ed.2d 274 (1969). A defendant is said to have an understanding of the...
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