Robbins v. Hepp
| Decision Date | 23 February 2022 |
| Docket Number | 15-CV-1343 |
| Court | U.S. District Court — Eastern District of Wisconsin |
| Parties | SHANE T. ROBBINS, Petitioner, v. RANDALL HEPP, Respondent. |
DECISION AND ORDER
Shane T. Robbins, who is incarcerated pursuant to the judgment of a state court, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Proceedings on his petition were stayed for a lengthy period so he could exhaust his remedies in state court (see ECF Nos. 13, 21), but those proceedings are now complete (ECF No. 21); see also State v. Robbins, No. 2012AP2805-CRNM, 2014 Wisc. App. LEXIS 1074 (Ct. App. Apr. 1, 2014); State v. Robbins, 2019 WI.App. 58, 389 Wis.2d 103, 936 N.W.2d 399, 2019 Wisc. App LEXIS 511.
Although Robbins's petition had initially been assigned to Judge Rudolph T. Randa, it was reassigned to this court following Judge Randa's death. All parties have consented to have this court resolve the petition in accordance with 28 U.S.C. § 636(c) (ECF Nos. 19, 20), and the petition is now ready for resolution.
Robbins's claims are difficult to follow, and not surprisingly he complains that the Wisconsin Court of Appeals did not understand his arguments. (See, e.g., ECF No. 44 at 2-3.) Because Robbins is proceeding pro se, the court must liberally construe his pleadings. But that does not excuse a pro se litigant's failure to follow directions, comply with rules, or present matters in an understandable manner.
The court notes that Robbins requested the appointment of counsel (ECF No. 28), but his request was directed at seeking help correcting what he perceived as the Wisconsin Court of Appeals' error in construing his motion as one for postconviction relief under Wis.Stat. § 974.06 when he captioned it as “Amendment of State Remedies Pursuant to Rule 59(e).” (ECF No. 28 at 1.) In denying his motion for the appointment of counsel, the court incorrectly referred to “recruiting” an attorney to represent Robbins. (ECF No. 30.) While such language is appropriate in the context of pro se litigants pursuing general civil claims, appointed counsel is available to habeas petitioners under the Criminal Justice Act if the court concludes that the petitioner is financially unable to obtain counsel and “that the interests of justice so require” the appointment of counsel. 18 U.S.C. § 2254(a)(2)(B).
Because the reason Robbins was seeking counsel was to correct an alleged error in how the Wisconsin Court of Appeals construed his petition, the interests of justice did not require the appointment of counsel. He failed to demonstrate that the court's construction was material, much less wrong. In his motion before the state court Robbins purported to rely on Rule 59(e) of the Federal Rules of Civil Procedure, but the rules of federal procedure do not apply in state court proceedings. Thus, the court of appeals apparently presumed he was bringing the action under the state law equivalent of Rule 59(e), which is Wis.Stat. § 805.15. But because a motion for a new trial was improper, the court of appeals reasonably construed the motion as coming under the only potentially applicable procedural provision, Wis.Stat. § 974.06.
Turning to the substance of Robbins's claims, the court starts with his amended petition. (ECF No. 22.) He failed to identify “Grounds for Relief” in the section of the form where he was asked to do so. Instead, for “Ground One” he wrote simply, “Same Amended Motion Pg. 3-4.” (ECF No. 22 at 6.) In the portion of the form where he was asked to provide supporting facts, he wrote only, “Same.” (ECF No. 22 at 6.) This pattern continued for the first four grounds for relief, but with the page numbers changing. (ECF No. 22 at 7-9.) But when asked to identify the facts supporting his fourth ground for relief he just listed “Grounds 5” through “Grounds 12” (without indicating what those grounds might be), indicated “See Amendment of State Remedies, ” and offered page numbers. (ECF No. 22 at 9.)
The court understands these references in his amended petition to correspond to a document docketed as ECF No. 22-1 and on which is written the heading “Amendment of State Remedies.” Thus, the court understands Robbins to be presenting the following grounds for relief:
On April 6, 2010, Robbins's girlfriend, Jessica, [1] went shopping and left her five-year-old daughter, Emma, four-year-old son, and infant daughter at home in the care of Robbins. (ECF No. 26-10 at 105-06.) When she arrived home, Jessica found Robbins and Emma by the bathroom, and Robbins told her that he and Emma had been taking a nap. (ECF No. 26-10 at 107.) Later that evening, as Jessica prepared to give Emma a bath, Emma began crying while she sat on the toilet and reported that her vagina hurt. (ECF No. 26-10 at 108.) Jessica observed that Emma's vagina was red and “[t]here was like slime on it.” (ECF No. 26-10 at 108.) Jessica proceeded to give Emma a bath in an effort to ease Emma's pain.
Jessica asked Emma if someone had hurt her, and after about 30 minutes of questioning, during which Emma initially said that she had rubbed herself (ECF No. 26-10 at 127), Emma eventually said, “Shane did it.” (ECF No. 26-10 at 109.) Emma told Jessica that Robbins assaulted her first on the couch and then took her to the bedroom where he put his penis in her mouth. (ECF No. 26-10 at 139.) Emma reported to Jessica that Robbins had also assaulted her about a month earlier when she was home sick. (ECF No. 26-10 at 140.)
Jessica confronted Robbins and he initially denied doing anything. But later he repeatedly said, “What do you want me to say?” before saying, (ECF No. 26-10 at 110.) This caused Jessica to break down and ask Robbins, “Why did you do this to her, how could you hurt my baby?” (ECF No. 26-10 at 110.) To this Robbins responded, (ECF No. 26-10 at 110.)
When Jessica said she was calling the police, Robbins left (ECF No. 26-10 at 110) and went to his father's home, where he was soon arrested (ECF No. 26-10 at 102). Robbins's father testified that Robbins said he had come to the home that night because he “did something bad.” (ECF No. 26-12 at 74.) According to his father, Robbins told him that “some girl came up on the couch and he was drunk and he starting [sic] rubbing on his crotch area with her butt or whatever it was, and supposedly he ejaculated or something and he felt bad and ran away.” (ECF No. 26-12 at 74.)
Later that night Emma was examined by a sexual assault nurse examiner, who observed redness in Emma's vaginal area (ECF No. 26-11 at 34) and two small scrapes around her vagina (ECF No. 26-11 at 34-35). The nurse collected swabs from Emma's body for DNA testing. (ECF No. 26-11 at 38-39.) Male DNA was detected from one of the swabs of Emma's labia minora, and Robbins “was included as a possible source” of that DNA. (ECF No. 26-12 at 17-19, 31-32.)
At trial Emma was asked about the “first time, ” and she testified that it occurred when her mom was shopping. (ECF No. 26-12 at 45-47.) She said she was lying on her back on the couch, Robbins removed her pants and underwear, and “put his wiener in my private.” (ECF No. 26-12 at 45.) Later that same day, she went to the bedroom where Robbins was and he again “put his wiener in my private.” (ECF No. 26-12 at 47-48.) Emma also reported another incident that she believed happened on the couch and the “[s]ame thing” happened. (ECF No. 26-12 at 53.)
The jury found Robbins guilty of first-degree sexual assault of a child for sexual intercourse occurring on April 6, 2010 (Count 2, ECF No. 26-7 at 56), first-degree sexual assault of a child for sexual contact occurring between December 1, 2009 and April 5, 2010 (Count 3, ECF No. 26-7 at 57), felony child abuse for the injuries Emma sustained on April 6, 2010 (Count 4, ECF No. 26-7 at 57), exposing his genitals to a child between December 1, 2009 and April 6, 2010 (Count...
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