R. Ward v. Jenkins

• Decision Date: 23 July 2010
• Docket Number: No. 08-2809.,08-2809.
• Citation: 613 F.3d 692
• Parties: Alan R. WARD, Petitioner-Appellant, v. Larry JENKINS, Warden, Fox Lake Correctional Institution * , Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

613 F.3d 692

Alan R. WARD, Petitioner-Appellant,

v.Larry JENKINS, Warden, Fox Lake Correctional Institution ^* , Respondent-Appellee.

No. 08-2809.

United States Court of Appeals,Seventh Circuit.

Argued Nov. 12, 2009.

Decided July 23, 2010.

COPYRIGHT MATERIAL OMITTED.

Bryna J. Dahlin (argued), Attorney, Winston & Strawn LLP, Chicago, IL, for Petitioner-Appellant.

Warren D. Weinstein (argued), Assistant Attorney General, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before CUDAHY, MANION, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Petitioner Alan R. Ward pleaded guilty in Wisconsin state court to felony theft by contractor and felony bail jumping after taking down payments from customers of his home improvement business without performing any of the work he contracted to do. He was sentenced to five years' imprisonment and nine years' supervised release. Ward sought postconviction relief in the state courts arguing, inter alia, that his counsel was ineffective because he ignored Ward's requests to file a motion to withdraw his guilty plea prior to sentencing. After exhausting state post-conviction remedies, Ward sought federal habeas corpus relief under 28 U.S.C. § 2254. The district court denied Ward's petition without holding an evidentiary hearing. Because Ward has alleged facts which, if proven, would entitle him to federal habeas relief, and because he was never afforded a full and fair hearing in the state courts, we remand to the district court for an evidentiary hearing.

I. BACKGROUND

Ward owned a home improvement business called Ward Construction. Though Ward may have been a skilled contractor, he had serious problems with the financial side of his operation. Ward accepted down payments from numerous customers, but failed to perform the work he contracted to do. As a result, he was charged with multiple violations of Wisconsin's criminal theft by contractor statute, Wis. Stat. § 943.20(1)(b). He was also subsequently charged with multiple counts of felony bail jumping, Wis. Stat. § 946.49(1)(b), when he continued to run his business after posting bail in violation of his signature bond. Overall, Ward was charged in four informations with 21 total counts of theft by contractor and bail jumping.

Ward had a plea hearing in Sauk County Circuit Court on March 10, 2004. He was represented by attorney Roger Klopp, whom he met for the first time that day. Ward claims that at no time during that meeting did Klopp review possible defenses to the charges with him. At the hearing, the state set forth the terms of a plea agreement. Ward would plead guilty to two counts of theft by contractor and three counts of felony bail jumping, and the remaining counts in the various informations would be dismissed, but read in for the purposes of sentencing and restitution. The amount of restitution would be determined in conjunction with sentencing, and the state would cap its total confinement recommendation to six years.

Some confusion ensued when it came time for Ward to enter a plea. Asked how Ward wished to plea, Klopp initially answered “no contest.” The court noted that the plea agreement was based on a plea of guilty, not no contest. Klopp immediately corrected himself and clarified that Ward's plea was “guilty,” and stated that he had explained the difference between that and no contest to his client. Ward, however, immediately spoke up and told the court that he did not in fact understand the difference between the two. The court then provided an explanation to Ward, which Ward stated he understood. Following this explanation, however, Ward repeated his desire to plead no contest.

Concluding that there was apparently no agreement, the judge began to schedule the case for trial. Klopp interjected and asked for a recess in order to explain and clarify the details of the plea agreement with Ward, which the court granted. Ward claims that during this recess, Klopp pressured him to plead guilty. Back in court after the recess, Ward indicated that he had come to understand the difference between guilty and no contest, and entered a plea of guilty pursuant to the agreement. The court accepted the plea and scheduled a sentencing hearing.

Following the plea hearing, but before sentencing, Ward asked for a new lawyer. Klopp withdrew as counsel, and Attorney Gerald Opgenorth was appointed in his stead on September 1, 2004. Ward claims that thereafter, he repeatedly instructed Opgenorth to withdraw his guilty plea, but that Opgenorth ignored his requests. According to Ward, Opgenorth went so far as to draft a motion to withdraw the plea, but never filed it. It is this alleged refusal to withdraw the plea that forms the basis of Ward's habeas petition before this court.

With his guilty plea still in place, Ward's sentencing hearing took place on February 11, 2005. Ward spoke at the hearing, but made no indication that he wanted to go to trial instead of pleading guilty, nor did he bring up any alleged requests to Opgenorth to move to withdraw his plea. The court sentenced Ward to five years' imprisonment and nine years' supervised release and tentatively ordered restitution in the amount of $78,000. ¹

Ward sought postconviction relief following judgment. In a pro se motion, Ward raised a host of claims, including allegations that both attorneys Opgenorth and Klopp rendered ineffective assistance of counsel. With respect to Opgenorth, Ward stated that he was ineffective due to “[t]he denial of defendant's continued request to WITHDRAW THE PLEA. Attorney Opgenorth did in fact typed [sic] out defendant's motion to withdraw the plea, but insisted not to follow through with defendant's request to withdraw the guilty plea.” With respect to Klopp, Ward alleged that he “changed” Ward's no contest plea without his consent, and that he waived Ward's right to a preliminary hearing without his consent. Ward's motion cited the Sixth and Fourteenth Amendments, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and a number of state cases involving ineffective assistance of counsel claims. Ward requested a Machner hearing, an evidentiary hearing provided under Wisconsin law to preserve trial counsel's testimony when pursuing an ineffective assistance of counsel claim. See State v. Machner, 92 Wis.2d 797, 285 N.W.2d 905, 908-09 (Wis.Ct.App.1979); see also Northern v. Boatwright, 594 F.3d 555, 559 (7th Cir.2010).

The trial court denied all of Ward's claims and denied a Machner hearing.

Ward appealed to the Wisconsin Court of Appeals, again alleging that Opgenorth “did not respect the client's decision to withdraw the plea” and again sought a Machner hearing to develop evidence in support of his allegations. The court of appeals also denied Ward's claims. In its opinion, the court set forth the Strickland standard, and stated “Ward contends that ... Opgenorth provided ineffective assistance of counsel because [he] failed to request a restitution hearing. We reject this claim because, among other things, Ward did not adequately plead it in his postconviction motion.” State v. Ward, 305 Wis.2d 653, 739 N.W.2d 490 (Wis.Ct.App.2007) (unpublished disposition). The appellate court did not directly address Ward's claim that Opgenorth ignored requests to withdraw Ward's guilty plea. Ward sought review from the Wisconsin Supreme Court, again noting that he had been denied an evidentiary hearing. The Wisconsin Supreme Court denied review. State v. Ward, 305 Wis.2d 128, 742 N.W.2d 525 (Wis.2007) (table disposition).

Having exhausted his state remedies, Ward filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin pursuant to 28 U.S.C. § 2254. In the petition, Ward alleged multiple instances where both Klopp and Opgenorth provided ineffective assistance of counsel, including Opgenorth's failure to withdraw Ward's guilty plea. The district court denied all of Ward's claims, finding that the state court did not unreasonably apply Strickland because Ward did not allege that he was prejudiced by Klopp or Opgenorth's conduct. Still acting pro se, Ward appealed to this court. We granted a certificate of appealability and appointed counsel to represent him as to a single issue: whether Opgenorth rendered ineffective assistance of counsel by refusing to file a motion to withdraw Ward's guilty plea.

II. ANALYSIS

A. Procedural Default

Before reaching the merits of Ward's petition, we first address the state's argument that Ward procedurally defaulted his ineffective assistance of counsel claim. We review a district court's procedural default ruling de novo. Hadley v. Holmes, 341 F.3d 661, 664 (7th Cir.2003).

The procedural default doctrine precludes federal review of a state court's habeas decision when the state court's decision was based on adequate and independent state law, or when the federal issue was not fairly presented to the state courts and those courts would now hold the claim procedurally barred. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir.2004). The doctrine requires that petitioners fairly present their claims “in concrete, practical terms, [so that] the state court [is] sufficiently alerted to the federal constitutional nature of the issue.” Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir.2001) (quoting Kurzawa v. Jordan, 146 F.3d 435, 442 (7th Cir.1998)). To determine whether a constitutional issue has been fairly presented, we consider four factors: “1) whether the petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases that apply a constitutional analysis to similar facts; 3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and 4)...