Trattner v. Tegels

Decision Date16 July 2020
Docket NumberCase No. 20-cv-208-pp
PartiesSTEVE L. TRATTNER, Petitioner, v. LIZZIE TEGELS, Respondent.
CourtU.S. District Court — Eastern District of Wisconsin


On February 10, 2020, the petitioner, through counsel, filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his 2006 conviction in Ozaukee County Circuit Court for first-degree reckless homicide. Dkt. No. 1 at 1; see also State of Wisconsin v. Steve L. Trattner, Ozaukee County Case Number 2006CF000027, available at: The petitioner admits that this is his second federal §2254 petition but asks "that this Court determine that although this is a second petition, it is not barred pursuant to Panetti, supra, because the claims were unripe." Dkt. No. 1 at 13.

This order screens the petition under Rule 4 of the Rules Governing Section 2254 Cases and dismisses it as a second or successive petition which the Seventh Circuit has not authorized him to file. The court declines to a certificate of appealability. I. Background

In January 2006, the State of Wisconsin charged the petitioner with first-degree reckless homicide. Dkt. No. 1 at 3; State v. Trattner, Ozaukee Case No. 2006CF000027, available at Attorney Michael Fitzgerald represented the petitioner in the trial court and in June 2006, the petitioner plead no contest to the charge. Id. The circuit court judge found the petitioner guilty and on September 6, 2006, sentenced him to thirty-five years of initial confinement followed by ten years supervision. Id. The court entered judgment two days later. Dkt. No. 1 at 3.

The petitioner, represented by Attorney Robert Henak, filed a direct appeal on May 14, 2007, arguing that (a) the trial court relied on inaccurate information at sentencing; (b) the sentence inappropriately punished the petitioner for a mental condition over which he had no control; and (c) the trial judge failed to explain why the sentence imposed was the minimum sentence necessary. Id. at 4. After the Court of Appeals affirmed the sentence, the Wisconsin Supreme Court denied the petition for review on November 20, 2008. Id.

On January 25, 2010, the petitioner, through Attorney Henak, filed a motion for post-conviction relief under Wis. Stat. §974.06. Id. at 5. The §974.06 motion argued that the petitioner had not knowingly, voluntarily and intelligently entered his plea. Id. The trial court denied the motion as procedurally barred because the petitioner had not challenged thevoluntariness of his plea on direct appeal; on April 6, 2011, the Wisconsin Court of Appeals affirmed. Dkt. No. 2-2.

Several months later, the petitioner—still represented by attorney Henak—filed a petition for writ of habeas corpus in the Eastern District of Wisconsin. See Trattner v. Pollard, Case No. 11-cv-886-JPS (E.D. Wis. Sept. 20, 2011). The petition alleged that the petitioner's no-contest plea was not knowingly, voluntarily and intelligently entered. Id. at Dkt. No. 1, p. 7. On July 31, 2012, Judge J.P. Stadtmueller denied the petition, finding that the petitioner had procedurally defaulted on the claim. Id. at Dkt. No. 13.

Four years later, on July 5, 2016, the petitioner, through attorney Lew Wasserman (who represents the petitioner in this habeas case), filed a second Wis. Stat. §974.06 motion alleging ineffective assistance of trial counsel and ineffective assistance of appellate/post-conviction counsel for failing to assert trial counsel's ineffectiveness. Id. The circuit court "denied [the motion] without a hearing as procedurally barred" and the Supreme Court denied the petitioner's petition for review on February 14, 2019. Id.

This second federal petition followed. Each of the "grounds for relief" in the petition asserts a different argument regarding the ineffective assistance of the petitioner's appellate counsel, Attorney Henak; the court observes that while the petitioner lists four grounds, they assert a single claim. Dkt. No. 1 at 7-9; see Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005) ("ineffective assistance of counsel is a single ground for relief no matter how many failings the lawyer may have displayed."). The petitioner advances fourarguments detailing Attorney Henak's purported failings: (1) failure to argue that trial counsel was ineffective, dkt. no. 1 at 7; (2) failure to argue that the plea was not based on sufficient facts and failure to argue that petitioner should have been allowed to withdraw his plea, dkt. no. 1 at 8; (3) failure to allege that trial counsel was ineffective for not moving to suppress statements from a custodial interview, id. at 9; and (4) failure to allege an insufficient factual basis for plea in the two prior post-conviction motions, id.

Normally, the court would start by "screening" a §2254 petition under Rule 4 of the Rules Governing §2254 proceedings, which states that

[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion or other response within a fixed time, or to take other action the judge may order.

Rule 4, Rules Governing §2254 Proceedings. A district court must allow a habeas petition to proceed unless it is clear that the petitioner is not entitled to relief. At the screening stage, a district court expresses no view as to the merits of any of the petitioner's claims. Rather, it reviews the petition and exhibits to determine whether the petitioner alleges that he is in custody in violation of the "Constitution or laws or treaties of the United States." 28 U.S.C. §22554(a).

But the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") carves out certain petitions that the court need not screen. AEDPA says that a federal district court need not entertain an inquiry into the legality of a petitioner's detention if a federal court has already determined the legality of that detention in a prior application for writ of habeas corpus. 28 U.S.C.§2244(a). To enforce this provision, AEDPA requires petitioners who wish to file a "second or successive" federal habeas petition to first obtain authorization from the applicable court of appeals before filing the petition in the district court. 28 U.S.C. §2244(b)(3)(A). "Section 2244(b)(3)(A) 'is an allocation of subject matter jurisdiction to the court of appeals. A district court must dismiss a second or successive petition, without awaiting any response from the government, unless the court of appeals has given approval for the filing." In re Page, 170 F.3d 659, 661 (7th Cir. 1999) (quoting Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996) (emphasis in Page)).

The Supreme Court has held that AEDPA's "second or successive" language does not refer to all §2254 petitions filed second or successively in time, "even when the later filing addresses a state-court judgment already challenged in a prior §2254 application." Panetti v. Quarterman, 551 U.S. 930, 944 (2007). Panetti was a death penalty case, in which the State acknowledged that a prisoner's claim that his competency proceedings were constitutionally inadequate under Ford v. Wainwright, 477 U.S. 399 (1986) "as a general matter, [is] not ripe until after the time has run to file a first federal habeas petition." Id. at 943. This is because Ford claims "turn[] on 'the mental state of the petitioner at the time of execution,'" and because a federal habeas petition must be filed within a year of the judgment becoming final, the claim will not be ripe at that time because, a year after the judgment is final, "'the execution is years away.'" Flores-Ramirez v. Foster, 811 F.3d 861, 865 (7th Cir. 2015) (quoting Tompkins v. Sec'y, Dep't of Corr., 557 F.3d 1257, 1260 (11th Cir.2009)). Noting that this fact presented death-row prisoners who wanted to challenge their competence to stand execution with a Hobson's choice of either foregoing the opportunity to file a Ford claim in federal court or raising the claim in a first federal habeas before it was ripe, Panetti, 551 U.S. at 943, the Panetti Court recounted that in Stewart v. Martinez-Villareal, 523 U.S. 637, 643 (1998), it had held that "in light of the particular circumstances presented by a Ford claim, it would treat the two filings as a single application," Panetti, 551 U.S. at 945. The Panetti Court held that "[t]he statutory bar on 'second or successive' applications does not apply to a Ford claim brought in an application filed when the claim is first ripe." Id. at 947.

The Seventh Circuit has applied the notion of "ripeness" outside of the context of a Ford competency motion in a death penalty case. In Flores-Ramirez, the court considered a petitioner who'd filed his first federal habeas petition in 2006. After filing that first petition, the petitioner discovered "that his interpreter at trial ha[d] failed certification tests and ha[d] been declared ineligible for state compensation for his services." Flores-Ramirez, 811 F.3d at 863. After seeking state postconviction relief on that issue, the petitioner returned to federal court. Id. While the district court found that two of the petitioner's claims were based on factual predicates—"the interpreter's lack of certification—'existed at the time he filed his prior petition,'" it concluded that the factual predicates of his third claim—relating to procedural errors during the state postconviction proceedings—had not. Id. at 864. The district court concluded that that one claim could not have been presented in the 2006habeas petition and required the respondent to answer. Id. The district court found the claims relating to the...

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