Morales v. Boatwright

• Decision Date: 03 September 2009
• Docket Number: No. 08-1153.,08-1153.
• Citation: 580 F.3d 653
• Parties: Marlo U. MORALES, Petitioner-Appellant, v. Ana BOATWRIGHT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

580 F.3d 653

Marlo U. MORALES, Petitioner-Appellant, v. Ana BOATWRIGHT, Respondent-Appellee.

No. 08-1153.

United States Court of Appeals, Seventh Circuit.

Argued January 8, 2009.

Decided September 3, 2009.

Jerome F. Buting, Attorney, Colleen D. Ball (argued), Buting & Williams, Brookfield, WI, for Petitioner-Appellant.

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

Before EASTERBROOK, Chief Judge, and EVANS and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Marlo Morales pleaded guilty in Wisconsin to two counts of first degree sexual assault of a child. After receiving an unexpectedly long sentence, he sought multiple reviews of his conviction in the Wisconsin state courts; after losing there, he sought a federal writ of habeas corpus. The district court denied his petition. We affirm.

I. Background

Marlo Morales was charged with two counts of first degree sexual assault of a child. He gave a statement to the police in which he admitted knowing the victim was eleven years old when he had sex with her, but that he could not control his urges because she was always teasing him. According to his confession, he had sex with the victim on at least five occasions beginning in the fall of 1999. His account, and that of the victim, was corroborated by a sexual assault nurse at a hospital. The nurse determined that the victim had recently had intercourse and was infected with a sexually transmitted disease. The victim told police that she had not had sexual intercourse with any other partners in her life. She was not yet thirteen at the time. Later, prosecutors informed the court that the victim had been assaulted at another time by another man.

In June 2000, Morales entered an Alford plea to two counts of first degree sexual assault of a child and was sentenced to concurrent prison terms of forty and sixty years (twenty of which were extended supervision). See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Because the sixty-year sentence was issued pursuant to Wisconsin's truth-in-sentencing law, Morales is not eligible for parole or good behavior credits, a circumstance he claims not to have known when entering into the plea agreement. In July 2001, Morales sought postconviction relief from the trial court and raised a variety of ineffective assistance claims, including two of the claims before us: that his trial counsel improperly understood the Wisconsin rape shield law (which would have allowed him to impeach his victim's testimony) and that the trial court failed to ensure that he understood the consequences of his guilty plea. He lost on August 2, 2001, and appealed. The Wisconsin Court of Appeals affirmed the trial court, adopting the "no-merit" report of his appellate counsel. Morales had filed a pro se response to the no-merit report, raising several new claims. The state supreme court denied review of his conviction on January 23, 2004.

Morales then attacked his conviction collaterally, under WIS. STAT. § 974.06, arguing that his appellate counsel was ineffective for failing to attack the effectiveness of his trial counsel. At this point, he raised the second ineffectiveness claim we have here regarding his trial counsel's failure to inform him of the sentencing consequences of his Alford plea. His collateral attack failed in the Wisconsin circuit court and court of appeals on the merits and because he failed to raise the claim in his response to his appellate counsel's no-merit brief. His petition for review of his § 974.06 motion was denied by the Wisconsin Supreme Court.

Proceeding onward, Morales filed a habeas petition in the Wisconsin Court of Appeals, challenging the effectiveness of his appellate counsel for his failure to raise the claim that his trial counsel was ineffective for not ensuring Morales understood all the elements of the crime. His petition was dismissed for a number of reasons discussed infra.

On May 16, 2006, Morales filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Wisconsin, and presented the issues we have before us in various forms. The state moved to dismiss, arguing that the petition was untimely and that Morales had procedurally defaulted on all of his claims. The district court found the petition timely and that Morales had not defaulted on the claims that we have here. But the district court denied the petition on the merits.

Morales requested a certificate of appealability, which the district court denied. We granted a certificate of appealability, finding that Morales "made a substantial showing of the denial of a constitutional right as to whether his trial counsel rendered constitutionally sufficient assistance and whether his guilty plea was knowing and voluntary."

II. Analysis

A. Standard of Review

We review a district court's decision to deny habeas relief de novo. Daniels v. Knight, 476 F.3d 426, 433 (7th Cir. 2007). Our review of petitioner's claims is constrained by the rules of the Antiterrorism and Effective Death Penalty Act, particularly 28 U.S.C. §§ 2244 & 2254, as outlined below. Wisconsin contests Morales's petition on a number of procedural grounds, also discussed below, as well as on the merits, which we find we must reach.

B. Timeliness

Morales had one year after his conviction became final in Wisconsin state court to bring a federal habeas petition. 28 U.S.C. § 2244(d)(1)(A). This limitation period is tolled while petitions for relief in state court are pending, as long as such petitions were properly filed. Id. § 2244(d)(2).

A brief word about Wisconsin's postconviction procedures is in order. It is obviously incumbent on a defendant to raise all the issues necessary to his defense at trial. If he does not do so, these are ordinarily waived. However, after his trial, a defendant has an opportunity to challenge the effectiveness of his trial counsel in a postconviction motion. See WIS. STAT. § 974.02. This motion allows the defendant to preserve issues that should have been raised at trial but were not, due to his counsel's alleged ineffectiveness. Failure to make this motion results in a forfeiture of all of defendant's claims, except for any claims that his postconviction counsel was ineffective for failing to raise. After a loss at trial and the denial of the postconviction motion, the defendant can then take his direct appeal to the Wisconsin Court of Appeals; there, the court considers any trial errors, including the ineffectiveness claims that the defendant raised in his postconviction motion. On direct appeal, defendant's appellate counsel, instead of pursuing the appeal, may file a no-merit report, which details the defendant's potential claims and the reasons that each claim lacks merit. A defendant may elect to file a pro se response to his counsel's no-merit report. After the disposition of his appeal, the defendant still may file a § 974.06 motion, which is equivalent to a petition for habeas corpus, if he is in custody "in violation of the U.S. constitution or the constitution or laws of [Wisconsin]. ..." WIS. STAT. § 974.06. The Wisconsin Supreme Court has held that § 974.06 motions challenging the effectiveness of appellate counsel should be filed directly in the court of appeals. State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540, 545 (1992). But, § 974.06 motions challenging the effectiveness of appellate counsel on the grounds that appellate counsel should have challenged trial counsel's effectiveness should be filed in the trial court. State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 556 N.W.2d 136, 139 (Ct.App.1996). The argument over how to properly characterize an ineffectiveness claim apparently arises frequently in Wisconsin courts, particularly when a defendant's appellate counsel fails to raise an ineffectiveness claim based on his trial counsel's conduct. The Wisconsin Court of Appeals has recently noted the confusion and delay that results in habeas filings in Wisconsin that are based on these dual-level ineffectiveness of counsel claims. See State ex rel Panama v. Hepp, 314 Wis.2d 112, 758 N.W.2d 806, 812-13 (Ct.App.2008).

Morales's conviction became final on April 22, 2004, at the end of the ninety days after the Wisconsin Supreme Court denial of his direct appeal during which he could have sought a writ of certiorari from the U.S. Supreme Court. Jones v. Hulick, 449 F.3d 784, 787 (7th Cir.2006). Two hundred fifty-seven days later, on January 4, 2005, Morales filed a petition for collateral relief under § 974.06 in state court. Review of this petition was ultimately denied by the Wisconsin Supreme Court on January 23, 2006. The next day Morales filed another § 974.06 motion in the Wisconsin Court of Appeals attacking the effectiveness of his appellate counsel. This petition was denied on May 11, 2006. Five days later he filed the instant habeas petition.

The crux of the timeliness issue is whether the second § 974.06 motion, filed in state appeals court, was properly filed for purposes of tolling the federal statute of limitations on habeas actions. If so, Morales filed this petition 262 days (after the tolled time is subtracted) from the date his conviction became final. If the second § 974.06 motion was not properly filed, Morales loses the 108 days during which his petition in the Wisconsin Court of Appeals was pending and thus, at 370 days, misses the cutoff date by five days.

Morales relies on Knight to support his contention that the petition was properly filed in the Wisconsin Court of Appeals. In Knight, the Wisconsin Supreme Court established the court of appeals as the proper forum for a § 974.06 motion alleging ineffective assistance of appellate counsel. Knight, 484 N.W.2d at 541. In his Knight petition (as it is known in Wisconsin), Morales argued that his appellate counsel was ineffective for...