Sergent v. Douma
| Decision Date | 26 January 2016 |
| Docket Number | 12-cv-810-slc |
| Parties | GEORGE H. SERGENT, Petitioner, v. TIMOTHY DOUMA, Warden, New Lisbon Correctional Institution, Respondent. |
| Court | U.S. District Court — Western District of Wisconsin |
State inmate George H. Sergent has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction for attempted sexual assault, battery and disorderly conduct in Green County Case No. 2006CF15. (Dkt. 1, as amended by dkt. 28). The state filed an answer disputing each of Sergent's claims. (Dkts. 12, 13 & 31). Both sides have briefed their positions. (Dkts. 2, 17 & 20). On January 19, 2016, both parties consented to magistrate judge jurisdiction, and the case was reassigned to me. (Dkts. 45-37).
Having read the pleadings, the briefs and the records from the state court proceedings, I conclude that Sergent has failed to establish that the state court of appeals unreasonably applied federal law or made an unreasonable determination of fact when that court rejected his claims and affirmed his convictions. Accordingly, the court is dismissing the petition.
As a corollary to this, I am affirming this court's preliminary decision (dkt. 22) to deny Sergent's request (dkt. 19) for an evidentiary hearing. See Section V., infra at 26.
In Green County Case No. 2006CF15, the state charged Sergent with attempted second-degree sexual assault of an unconscious person in violation of Wis. Stat. § 940.225(2)(d); attempted third-degree sexual assault in violation of Wis. Stat. § 940.225(3); battery in violation of Wis. Stat. § 940.19; and disorderly conduct in violation of Wis. Stat. § 947.01. These charges were based on allegations made by a woman who was asleep at Sergent's house after a night of drinking with her husband and Sergent. The victim was intoxicated and went straight to bed while still wearing her clothes. She awoke to find Sergent in the process of pulling off her pants. When the victim resisted, Sergent slapped and punched her while cursing at her. The victim was able to get away wearing only a shirt.
At trial, a jury found Sergent guilty of all four counts. The circuit court imposed a total sentence of 17 years (seven years' imprisonment followed by a 10-year term of extended supervision) for the conviction of second degree attempted sexual assault of an unconscious person. The punishment imposed in the other counts of conviction was concurrent to the sentence imposed in count one.2
The circuit court denied Sergent's motion for postconviction relief, the court of appeals affirmed his conviction, see State v. Sergent, 2012 WI App. 62, 341 Wis. 2d 489, 815 N.W.2d 406 (April 19, 2012) (unpublished), and the Wisconsin Supreme Court denied his petition for review. See State v. Sergent, 2010AP3136 (Sept. 28, 2012).
Sergent then filed a motion to vacate his sentence, noting that the maximum sentence of extended supervision that he could receive for second degree attempted sexual assault of an unconscious person, a Class C felony, was 7.5 years. The circuit court denied the motion, but the Wisconsin Court of Appeals reversed, in part, noting that Sergent's 10-year term of extended supervision exceeded the maximum allowed. See State v. Sergent, 2013AP193-CR. On January 24, 2014, the excess portion of his sentence was vacated pursuant to Wis. Stat. § 973.13, adjusting Sergent's sentence to a total of 14.5 years (seven years' imprisonment followed by a term of 7.5 years' extended supervision).
In this court, Sergent contends that he is entitled to relief from his conviction under 28 U.S.C. § 2254 because he was denied effective assistance of counsel. Sergent contends that the attorney who represented him on post-conviction review and direct appeal was deficient for failing to raise these five grounds for relief: (1) Sergent was denied a fair trial by an impartial jury; (2) the evidence was insufficient to support Sergent's conviction for attempted second or third-degree sexual assault; (3) Sergent was denied effective assistance of counsel at trial; (4) Sergent's convictions for both attempted second and third-degree sexual assault violated the double jeopardy clause; and (5) Sergent was denied the right to counsel when the State amended the charging instrument. Sergent also contends that the circuit court erred by denying him an evidentiary hearing on his ineffective-assistance claims and that he is entitled to additional relief from his sentence.
The state responds that Sergent's claims are meritless and this court should deny his petition.
OPINIONWith the exception of Sergent's claim concerning his sentence, all of his asserted grounds for relief appear to have been adjudicated on their merits by the circuit court, the Wisconsin Court of Appeals and the Wisconsin Supreme Court, which summarily denied review. When a state system issues multiple decisions, a federal habeas corpus court typically considers "the last reasoned opinion on the claim." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Woolley v. Rednour, 702 F.3d 411, 421 (7th Cir. 2012) () (citation omitted). To the extent that the claim was addressed on the merits by a state court, it is Sergent's burden to establish that the court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
The standard outlined in § 2254(d)(1) is exacting and "highly deferential," Burt v. Titlow, — U.S. —, 134 S. Ct. 10, 15 (2013), demanding that state courts be given "the benefit of the doubt." Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 786 (2011). To prevail, "a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362,404-08 (2000). A state court unreasonably applies clearly established precedent if it identifies the correct governing legal principle but unreasonably applies that principle to the facts of the case. See Brown v. Payton, 544 U.S. 133, 141 (2005). This demanding standard authorizes relief only in cases "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington, 131 S. Ct. at 786. In addition to the "formidable barrier" posed by this standard, Titlow, 134 S. Ct. at 16, the petitioner bears the burden of rebutting the state court's factual findings "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Sergent maintains that he was denied effective assistance of counsel at trial, on post-conviction review and during his direct appeal. Claims for ineffective assistance of counsel are analyzed under the well-established standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under the Strickland standard, a petitioner generally must demonstrate both constitutionally deficient performance by counsel and actual prejudice as a result of the alleged deficiency. See Williams v. Taylor, 529 U.S. 362, 390-91 (2000). "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that rendered the result unreliable." Strickland, 466 U.S. at 687.
To demonstrate deficient performance, the petitioner must show "that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. Counsel's errors must have been "so serious as to deprive the defendant of a fair trial." Id. at 687. Sussman v. Jenkins, 636 F.3d 329, 349 (7th Cir. 2011) (internal quotation marks and citations omitted). To demonstrate actual prejudice requires a defendant to demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
The Strickland standard applies similarly to allegations of ineffective-assistance in connection with a defendant's direct appeal. To establish that his appellate attorney's performance was deficient, a defendant must show that his attorney was objectively unreasonable in failing to find arguable issues to appeal. Smith v. Robbins, 528 U.S. 259, 285 (2000). In other words, a defendant must show that counsel unreasonably failed to discover non-frivolous issues and raise them. Id. If the defendant succeeds in such a showing, then he must establish actual prejudice by demonstrating a "reasonable probability" that, but for his counsel's deficient performance, "he would have prevailed on his appeal." Id.
All of Sergent's ineffective-assistance claims were rejected in state court. A review of the underlying decisions reflects that the state court accurately characterized Sergent's claims and identified the correct legal standard controlling his allegations of ineffective assistance. Thus, the central question here is not whether this court "'believes the state court's determination' under the St...
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