Liegakos v. Cooke

• Decision Date: 03 June 1996
• Docket Number: No. 95-C-941.,95-C-941.
• Citation: 928 F. Supp. 799
• Parties: Jon T. LIEGAKOS, Petitioner, v. Maryanne COOKE, Warden, Kettle Moraine Correctional Institution, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

928 F. Supp. 799

Jon T. LIEGAKOS, Petitioner, v. Maryanne COOKE, Warden, Kettle Moraine Correctional Institution, Respondent.

No. 95-C-941.

United States District Court, E.D. Wisconsin.

April 9, 1996.

Order Denying Reconsideration June 3, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Shellow, Shellow & Glynn by Robert R. Henak, Milwaukee, WI, for Petitioner.

Wisconsin Department of Justice by Assistant Attorney General Maureen McGlynn Flanagan, Madison, WI, for Respondent.

DECISION AND ORDER

MYRON L. GORDON, District Judge.

Jon Liegakos commenced this action on September 13, 1995, by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2242 and 2254. According to Mr. Liegakos' petition, he was convicted on April 17, 1986, in the circuit court for Kenosha county, for "first degree murder while armed with a dangerous weapon in violation of Wis.Stat. §§ 940.01 & 939.63(1)(a)(2) (1985)." Mr. Liegakos is presently incarcerated at the Kettle Moraine Correctional Institution.

In his petition, Mr. Liegakos challenges the constitutionality of his conviction on four grounds: (1) he was denied his right to testify at trial on his own behalf and he did not validly waive that right; (2) he was denied his due process right to compulsory process and to present a defense when an eyewitness to the alleged crime was permitted to assert his privilege against self-incrimination despite the prosecutor's offer of use and derivative use immunity and when the court barred the state from entering into an informal immunity agreement with the eyewitness; (3) he was denied "his right to the effective assistance of counsel when his trial counsel failed to warn him of the negative consequences of not testifying and failed to deal in any way with the incriminating statement attributed to him by a witness"; and (4) the state collateral review procedure was unconstitutional insofar as he was denied his right to due process when the "Wisconsin court of appeals retroactively applied a radically new state procedural rule to bar review of his right to testify and effective assistance of counsel claims."

By decision and order of September 19, 1995, I determined that Mr. Liegakos' petition passed scrutiny under Rule 4, Rules Governing Section 2254 Cases, and directed the respondent to answer the petition. In her answer, the respondent sought dismissal of the petitioner's right to testify claim and effective assistance of counsel claim on the ground that federal habeas corpus review of such claims was not permitted under the doctrine of procedural default. As to the petitioner's claim that the state collateral review process was unconstitutional, the respondent asserted that such claim should be dismissed for failure to state a claim under Rule 12(b)(6), Federal Rules of Civil Procedure. In addition, the respondent moved in her answer to dismiss the petitioner's claims concerning the collateral review procedure, his right to testify and his right to effective assistance of counsel on the ground that recognition of the rights asserted by the petitioner in each of those claims would constitute a "new rule" which could not be applied retroactively in this case under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). No formal motion for dismissal was filed by the respondent.

After the answer was filed, a briefing schedule was established to address issues raised in the petition and the answer. The issues are now fully briefed.

I. PROCEDURAL BACKGROUND

On April 17, 1986, a jury found Mr. Liegakos guilty of first degree murder while armed with a dangerous weapon in violation of Wis.Stats. §§ 940.01 and 939.63(1)(a)(2). The conviction stems from a fight between Mr. Liegakos and Richard Lundgren outside a tavern in Kenosha. Mr. Lundgren died of stab wounds received during the fight. Mr. Liegakos was sentenced to life imprisonment.

At trial, Mr. Liegakos was represented by retained counsel, Terry Rose. At trial, the defendant unsuccessfully advanced the theory of imperfect self-defense manslaughter.

A direct appeal of his conviction was pursued by Mr. Liegakos in which he raised 14 claims of error. Included in these claims was one that he now advances on federal habeas corpus review: that his rights to compulsory process and to present relevant evidence were denied by the trial court when it permitted a defense witness, who was both a friend of the defendant and an eyewitness, to assert the Fifth Amendment privilege against testifying despite a state offer of full use and derivative use immunity and when it barred the state and the witness from entering into an informal immunity agreement. Mr. Liegakos did not raise claims that he was deprived of his right to testify or his right to the effective assistance of trial counsel on direct appeal. The petitioner's conviction was affirmed by the Wisconsin court of appeals on September 23, 1987, and the Wisconsin supreme court denied review in December 1987.

Five years later, on November 23, 1992, Mr. Liegakos filed a petition for post-conviction relief under Wis.Stats. § 974.06 in the trial court. This petition alleged that his conviction was constitutionally infirm because he had been denied his right to testify and his right to the effective assistance of counsel. As noted previously, neither of these claims were raised by Mr. Liegakos on direct appeal. An evidentiary hearing was held by the trial judge in connection with the petition for post-conviction relief; the petition was denied by written decision of April 27, 1993.

Mr. Liegakos appealed the denial of his § 974.06 motion to the Wisconsin court of appeals. In the state's appellate brief, the state argued, for the first time, an alternative ground for affirmance: that the petitioner's constitutional claims asserting a denial of the right to testify and of effective assistance of counsel were procedurally barred under a correct interpretation of § 974.06 because those claims were not raised on direct appeal. In making this argument, the state sought reversal of Bergenthal v. State, 72 Wis.2d 740, 242 N.W.2d 199 (1976), a prior decision of the Wisconsin supreme court which permitted criminal defendants to raise in § 974.06 proceedings constitutional claims which were available but not raised by the defendant on direct appeal.

After briefing was completed in Mr. Liegakos' appeal, the state moved to bypass the state court of appeals so Mr. Liegakos' appeal could be consolidated with a pending case before the Wisconsin supreme court — State v. Escalona-Naranjo, Case No. 92-0846. In Escalona-Naranjo, the state raised the same issue concerning the proper interpretation of Wis.Stats. § 974.06(4). The Wisconsin supreme court denied the motion for bypass and held Liegakos' appeal in abeyance pending a decision in Escalona-Naranjo.

On June 22, 1994, the state supreme court issued its decision in Escalona-Naranjo, which overruled Bergenthal and held that absent "sufficient reason" a defendant may not raise a constitutional challenge in a motion for post-conviction relief under § 974.06 which was available but not raised on direct appeal. State v. Escalona-Naranjo, 185 Wis.2d 168, 181-182, 517 N.W.2d 157 (1994).

The Wisconsin court of appeals denied Mr. Liegakos' motion to file supplemental briefs addressing the Escalona-Naranjo decision and, on August 24, 1994, summarily affirmed the trial court's denial of Mr. Liegakos' motion for relief under § 974.06 in view of the Wisconsin supreme court's decision in Escalona-Naranjo.

Mr. Liegakos' petition for review by the Wisconsin supreme court which challenged the retroactive application of Escalona-Naranjo was denied as was his petition for certiorari that was filed with the United States Supreme Court, Liegakos v. Wisconsin, ___ U.S. ___, 115 S.Ct. 1113, 130 L.Ed.2d 1078 (1995).

II. PROCEDURAL DEFAULT

A federal court may address the merits of constitutional claims brought in a petition for habeas corpus relief only when the state courts have had a full and fair opportunity to address them. Farrell v. Lane, 939 F.2d 409 (7th Cir.), cert. denied, 502 U.S. 944, 112 S.Ct. 387, 116 L.Ed.2d 337 (1991); United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1131-32 (7th Cir. 1990). Determining whether the state courts have had a full and fair opportunity to review the claims involves two inquiries: (1) whether the petitioner exhausted all available state remedies (the doctrine of exhaustion); and (2) whether the petitioner raised all of his claims throughout the course of the state proceedings (the doctrine of "procedural default"). See Farrell, 939 F.2d at 410 (citing Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir.1988), cert. denied, 490 U.S. 1009, 109 S.Ct. 1648, 104 L.Ed.2d 163 (1989)).

The respondent argues that Mr. Liegakos has forfeited the right to have this court review his right to testify claim and his effective assistance of counsel claim by procedurally defaulting in state court but concedes that such claims have been exhausted.

The doctrine of procedural default bars federal habeas corpus relief on claims that were not presented to state courts in accordance with state procedural rules. A procedural default may occur in two ways: (1) the petitioner forfeits the right to raise an issue on federal habeas review that he failed to raise on direct or post-conviction review, Farrell, 939 F.2d at 410; Gramley, 915 F.2d at 1132; and (2) the petitioner is precluded from raising an issue on federal habeas corpus review where the state court clearly relies on a state procedural rule as an independent basis for its disposition of the case, Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991) ("In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred...."). Even if a petitioner...