Miller v. Smith, Case No. 09-C-0335
| Decision Date | 28 December 2012 |
| Docket Number | Case No. 09-C-0335 |
| Parties | JIMMIE L. MILLER, Petitioner, v. JUDY P. SMITH, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Jimmie Miller seeks a writ of habeas corpus under 28 U.S.C. § 2254. Miller challenges his conviction of December 12, 2005, in Racine County Circuit Court arguing that the Wisconsin Court of Appeals violated his constitutional right to counsel by failing to appoint a new attorney along with reinstating his right to first appeal as of right. He further asserts that his guilty plea was not entered knowingly, intelligently or voluntarily. Miller's petition will be denied because he failed to show that he has been subjected to any violation of a well-established federal right and is procedurally barred from bringing the second claim due to failure to comply with state procedural rules.
On December 12, 2005, the Racine County Circuit Court convicted Miller for one count of first-degree sexual assault of a child following a guilty plea. Miller was sentenced to 10 years in prison followed by 20 years of extended supervision. (Id.) Miller remains incarcerated at the Oshkosh Correctional Institution. (Doc. 28, Pg. 1.)
In early 2006, Miller filed a notice of intent to pursue postconviction relief. (Doc.1, Ex. 4.) The Wisconsin State Public Defender's Office appointed Attorney John Grau as appellate counsel for Miller. (Doc. 1, Ex. 3.) Attorney Grau filed a postconviction motion in the trial court on behalf of Miller seeking resentencing on January 12, 2007. (Doc. 1, Ex. 4.)
However, during a motion hearing on April 23, 2007, Miller withdrew the postconviction motion for resentencing. (Doc.1, Ex. 5.) Miller alleges that during an off-the-record discussion between the trial court judge, the prosecutor and Attorney Grau, the trial court judge promised to increase his sentence if he proceeded with the motion. (Doc. 22 at 3.) Miller further alleges that he only ordered Attorney Grau to withdraw the postconviction plea for fear that the trial court judge would increase his sentence. (Doc. 22 at 4.)
After the postconviction motion hearing, in a letter dated May 2, 2007, Attorney Grau reminded Miller that he had decided previously not to pursue the resentencing motion. (Doc.1, Ex 5.) Also, Attorney Grau informed Miller that after reviewing his case file, he felt there was no basis for further pursuing sentence credit. (Id.) At the end of the letter, Attorney Grau promised to call Miller to discuss the matter. (Id.)
Miller claims that Attorney Grau never followed up, and that as a result, he sent a letter dated July 26, 2007, inquiring about the next line of action to be pursued. (Doc. 22 at 5.) Miller asserts that on August 7, 2007, he sent another letter requesting Attorney Grau to pursue a plea withdrawal because the state violated the terms of his plea agreement and his plea was not knowingly, voluntarily or intelligently entered. (Doc. 1, Ex. 6)
The State Public Defender asked Attorney Grau to respond to Miller's inquiries in a letter dated August 28, 2007. (Doc. 1, Ex. 9.) On September 12, 2007, Miller informed the Public Defender by letter that he still had not been contacted by Attorney Grau. (Doc. 1, Ex. 10.) After more letter exchanges between the Public Defender and Miller, the Public Defender attempted to resolve the issue in another letter to Miller dated October 10, 2007. (Doc.1, Ex. 12.) The Public Defender informed Miller that if he disagreed with Attorney Grau's conclusion that he had no-merit for further proceeding, Miller could release Attorney Grau and proceed pro se on appeal or with the assistance of an attorney hired by him or he could inform Attorney Grau to prepare a no-merit report for the court of appeals pursuant to Rule 809.32, Stats. (Id.)
On October 16, 2007, Miller directed Attorney Grau to file a no-merit report and requested a copy of the report to help prepare his response brief. (Doc. 1, Ex. 13.) Attorney Grau neither filed a notice of appeal nor a no-merit report. As a result, on January 17, 2008, Miller filed a pro se petition for a writ of habeas corpus alleging ineffective assistance of appellate counsel. (Doc. 19, Ex. B.) In his petition, Miller alleged that he received ineffective assistance of appellate counsel because Attorney Grau abandoned him on his first appeal as of right from his 2005 conviction. (Id.) The Wisconsin Court of Appeals ordered a response to the petition from the prison warden. (Doc. 19, Ex. C.)
The warden conceded that Attorney Grau did not provide the no-merit report requested by Miller and that Attorney Grau was ineffective. (Id.) The warden suggested that the apt remedy was reinstatement of Miller's direct appeal rights and a no-merit report, as requested by Miller in October 2007. (Id.) Miller rejected the suggestion that AttorneyGrau should resume representation via a no-merit report and demanded new counsel. (Doc. 19, Ex. D.)
The Wisconsin Court of Appeals granted Miller's petition for a writ of habeas corpus, reinstated Miller's appeal rights and returned Miller to the position he enjoyed before appellate counsel ignored his request for a no-merit report. (Doc. 19, Ex. E.) The court ordered counsel to file a notice of appeal and a no-merit report pursuant to state rules1. (Id.) However, the court rejected Miller's request for new appellate counsel and informed Miller that if he desired new counsel, he had to seek such relief from the State Public Defender (Id.)
Not satisfied with the appellate court's decision, Miller petitioned the Wisconsin Supreme Court asserting that he was entitled to new counsel when his appeal as of right was reinstated. (Doc. 19, Ex. F.) On December 15, 2008, the Wisconsin Supreme Court denied review of the petition (Doc. 19, Ex. H.)
Following the Wisconsin Supreme Court's denial to review his case, Miller wrote to the Wisconsin Court of Appeals, informing the court of his desire to discharge Attorney Grau and proceed pro se on appeal. (Doc. 19, Ex. M.) The Wisconsin Court of Appeals advised Miller of the hardships of self-representation. Miller confirmed that he was waiving his right to appointed counsel for postconviction and appellate proceedings and intended to proceed pro se. (Doc. 19, Ex. P.) On February 11, 2009, the court discharged Miller's appellate counsel and ordered that Miller file a postconviction motion or a notice of appeal with 75 days. (Doc. 19, Ex. O.) Refusing to relent on his efforts, Miller petitioned theUnited States Supreme Court for a writ of certiorari. In March 2009, the Supreme Court denied Miller's petition. (Doc. 19, Ex. I.)
Miller then wrote to the Wisconsin Court of Appeals informing the court that he did not intend to proceed pro se on his first appeal as of right because he was entitled to an actual first appeal as of right along with a new appointed appellate counsel. (Doc. 19, Ex. Q.) He stated that he intended to pursue a resolution of the matter in the federal courts. (Id.) Miller filed the instant petition for a writ of habeas corpus to this court on March 27, 2009. (Doc. 1.) In his petition, Miller asserts that the Wisconsin Court of Appeals forced him to appear pro se in violation of the Sixth and Fourteenth Amendment to the United States Constitution after it reappointed the same appellate counsel who was previously found to be ineffective. (Id.) He also submits that his guilty plea was not entered intelligently, voluntarily and knowingly in violation of the Fourteenth Amendment to the United States Constitution. (Doc. 13.)
A federal court can consider a petition for a writ of habeas corpus on its merits only if the petitioner (1) exhausted all remedies available in the state courts and (2) fairly presented any federal claims in state court first. Dretke v. Haley, 541 U.S. 386, 388 (2004); Bocian v. Godinez, 101 F.3d 465, 469 (7th Cir.1996) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)).
A district court "shall entertain an application for a writ of habeas corpus . . . only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Habeas relief is unavailable to remedy errors of state law. Perry v. McCaughtry, 308 F.3d 682, 688 (7th Cir.2002).
In regard to any claim that was adjudicated on the merits in a state court proceeding, a writ of habeas corpus is granted only when the adjudication of the claim resulted in a decision that (1) was contrary to clearly established federal law as determined by the U.S. Supreme Court; (2) involved an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court; or (3) was based on an unreasonable determination of facts in light of the evidence presented at the state court proceedings. § 2254(d)(1), (2).
A state court's decision is contrary to Supreme Court law if the state court arrived at a conclusion opposite of that reached by the Supreme Court on a question of law or if the state court decided the case differently than the Supreme Court on facts that are materially indistinguishable. Williams v. Taylor, 529 U.S. 362, 405-06, 413 (2000).
A state court's application of federal law is unreasonable if the state court identified the correct governing legal principle but unreasonably applied that principle to the facts of the case. Id. at 407-09, 413. The controlling question for the aforementioned determination is whether the state court's application of clearly established federal law was objectively unreasonable. Id. at 409.
Before a federal court may consider the merits of a state habeas petitioner's claim, the petitioner must exhaust the remedies available to him in the state courts. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir.2004). However, when the petitioner...
To continue reading
Request your trial