Varnell v. Young, 87-1655
Decision Date | 16 February 1988 |
Docket Number | No. 87-1655,87-1655 |
Citation | 839 F.2d 1245 |
Parties | Clark VARNELL, Petitioner-Appellant, v. Warren YOUNG, Respondent-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
William J. Tyroler, Public Defender, Milwaukee, Wis., for petitioner-appellant.
Christopher Wren, Asst. Atty. Gen., Madison, Wis., for respondent-appellee.
Before CUMMINGS, WOOD, and COFFEY, Circuit Judges.
The petitioner, Clark Varnell, appeals from an order of the United States District Court for the Eastern District of Wisconsin denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. We affirm.
On June 17, 1985, after the petitioner pleaded guilty in the Wisconsin court system to one count of delivery of a controlled substance; two counts of aiding and abetting the delivery of a controlled substance; and one count of possessing a firearm as a felon, the Circuit Court of Kenosha County, Wisconsin, entered judgments of conviction against Varnell. Varnell was sentenced to 41 years in prison and fined $55,000. Varnell brought a motion to reduce the sentence pursuant to Sec. 809.30, Wis.Stats., 1 asserting that the sentence was harsh and excessive because the sentencing state trial judge allegedly compared Varnell's role in his crimes to a then recent act of terrorism in Lebanon. In denying Varnell's motion, the Wisconsin Circuit Judge made the following statement, which set in motion the events leading to the present appeal:
(Emphasis added).
Varnell, on appeal to the state appellate court from the trial court's final order denying the Sec. 809.30 motion, raised two issues:
"(1) whether the imposition of the maximum sentence possible was excessive because the trial court impermissibly considered an inappropriate and irrelevant factor, and (2) whether Varnell was denied a meaningful right of allocution at the sentencing preceding."
State v. Varnell, Nos. 85-2206-CR & 85-2207-CR, unpublished op. at 2 (Wis.Ct.App. July 2, 1986) [132 Wis.2d 480, 392 N.W.2d 848 (table) ]. The second issue, the petitioner's extra-judicial sentencing claim, had two components: initially, he asserted that the alleged out-of-court sentencing violated his constitutional due process rights; and secondly, contended that in deciding on a sentence prior to the sentencing hearing, the trial judge denied his statutory right of allocution pursuant to Sec. 972.14 of the Wisconsin Statutes. 2
Judge Nettesheim, writing for the Wisconsin Court of Appeals, upheld the petitioner's sentence, disregarding the harshness attack but refused to reach the merits of Varnell's twofold extra-judicial sentencing claim. The court specifically stated:
Id. at 6 (emphasis added). The Wisconsin Court of Appeals further observed that:
Id. at 7-8 (emphasis added).
Varnell petitioned for review in the Wisconsin Supreme Court pursuant to Sec. 809.62, Wis.Stats., reasserting a violation of his constitutional due process rights since the state circuit judge had determined his sentence outside of, and prior to, his sentencing hearing. Additionally, Varnell argued that the Wisconsin Court of Appeals' refusal to rule on the extra-judicial sentencing claim, and its attendant consignment to a Sec. 974.06 collateral attack, 4 violated his federal due process right to a direct appeal. The Wisconsin Supreme Court denied review by order dated October 14, 1986, and Varnell filed a habeas petition. The district court dismissed the petition, finding that Varnell failed to exhaust his remedies in the state courts. The sole question before us is whether the petitioner, Clark Varnell, exhausted his state court remedies as required by 28 U.S.C. Sec. 2254(d). 5 See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
The Supreme Court held that:
Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203. However, we have emphasized that the "opportunity presented to the state court must be a fair opportunity." Wallace v. Duckworth, 778 F.2d 1215, 1223 (7th Cir.1985). In order to argue successfully that the state courts were afforded a fair opportunity to decide the claim, the petitioner must establish that the state court was "fairly alerted" to the constitutional claim and that "the 'substance' of the ... claim [was] 'fairly presented.' " Id. at 1223. A habeas petitioner "has 'fairly presented' a claim to a state court if he has clearly informed the state court of the factual basis of that claim and has argued to the state court that those facts constituted a violation of the petitioner's constitutional rights." Toney v. Franzen, 687 F.2d 1016, 1021 (7th Cir.1982); see also Arrowood v. Clusen, 732 F.2d 1364, 1368 (7th Cir.1984).
The petitioner asserts that the state courts were fairly alerted to his twofold extra-judicial sentencing claim and were given a fair opportunity to rule on these claims since the record before the Wisconsin appellate courts contained an adequate factual basis to provide review. Varnell's assertions are remarkable in light of the Wisconsin Court of Appeals' decision refusing to address Varnell's extrajudicial sentencing claims specifically because it found that the issue was not properly before it. The court, as previously noted, stated:
State v. Varnell, op. at 7-8 (emphasis added). Implicitly, the Wisconsin Court of Appeals found that it lacked an adequate factual record on which to review the merits of Varnell's claims. We observe that an important purpose for the Supreme Court's Rose v. Lundy decision, which required state prisoners to fully exhaust their state court remedies, was to enable the state courts to fully develop the factual record. The Supreme Court stated:
"Equally as important, federal claims that have been fully exhausted in state courts will more often be accompanied by a complete factual record to aid the federal...
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