COURT OF APPEALS DECISION DATED AND FILED December 16, 2014 Diane M. Fremgen Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL from an order of the circuit court for Milwaukee County: WILLIAM S. POCAN, Judge. Affirmed.
Before Curley, P.J., Fine[1] and Kessler, JJ.
¶1 PER CURIAM. Bruce T. Davis, pro se,
appeals an order dismissing his petition for a writ of habeas corpus and an order denying his motion to reconsider. We affirm.
BACKGROUND
¶2 The
Department of Corrections alleged that, while Davis was serving a term of
extended supervision for three burglaries, he violated the terms of his
supervision on several occasions. Following
an evidentiary hearing at which Davis was represented by counsel, an
administrative law judge found that the Department proved the allegations that,
on August 31, 2011, Davis entered Meghan S.L.’s home without her consent, grabbed
her, and demanded money.[2] The administrative law judge concluded that
Davis’s “violations are serious and warrant revocation.”
¶3 Davis
appealed the administrative law judge’s decision to the administrator of the
Division of Hearings and Appeals. The
administrator upheld the decision, concluding:
“given that Davis is on supervision for three burglaries ... his
violations warrant revocation to protect the community from further crime.”
¶4 Represented
by new counsel, Davis petitioned the Milwaukee County circuit court for certiorari review of the revocation
decision. The circuit court affirmed,
and Davis did not appeal.[3]
¶5 Davis
then launched the instant litigation.
Proceeding pro se, he petitioned
the circuit court for a writ of habeas
corpus, naming as respondents the State of Wisconsin and the warden of the
institution where Davis is confined. He alleged
that the attorney who represented him in the certiorari review proceeding was ineffective for failing to
challenge the effectiveness of the attorney who represented him in the
revocation proceedings. He went on to
allege that the attorney who represented him during the revocation proceedings
was ineffective by failing to prepare for the hearing with an adequate
investigation and by failing to make appropriate objections in response to the
evidence presented. Davis asserted that,
but for the alleged ineffectiveness of the lawyer who represented him in the
revocation proceedings, the administrative law judge “more th[a]n likely would
have dismissed the charges” and would have concluded that the “evidence against
[Davis] was clearly insufficient to revoke [his] supervision.”
¶6 The
State in response moved to dismiss the petition, arguing that the allegations
lacked merit. Further, the State argued
that the proceedings were moot because, following the revocation of Davis’s extended
supervision, a jury found Davis guilty of the crimes underlying the revocation
decision, and his convictions alone are sufficient to support revocation of his
extended supervision. The State attached
more than 150 pages of documents to its motion, including the transcript of the
revocation hearing, the decision of the administrative law judge revoking
Davis’s extended supervision, the decision of the Administrator of the Division
of Hearings and Appeals sustaining that decision, the circuit court decision
affirming the Administrator, and circuit court docket entries reflecting
Davis’s criminal convictions for offenses he committed against Meghan S.L.
¶7 Davis
filed a reply brief contending that the proceedings for a writ of habeas corpus were “not rendered moot by
virtue of petitioner’s criminal convictions” because he was pursuing an appeal
of his criminal convictions. Thus, in
his view, any claim that the Department would revoke his extended supervision
based on those convictions was merely speculative. The circuit court entered a decision and
order dismissing Davis’s petition. The
circuit court also denied his motion to reconsider, and he now appeals.
DISCUSSION
¶8 Davis
petitioned for a writ of habeas corpus
to address his claims that he received ineffective assistance of counsel. “Whether writ of habeas corpus is available to the party seeking relief is a
question of the law that we review de
novo.” State v. Pozo, 2002 WI
App 279, ¶6, 258 Wis. 2d 796, 654 N.W.2d 12.
¶9 We
first dispose of the claim based on the alleged ineffectiveness of the attorney
who represented Davis during the certiorari
proceedings. “[U]nder the Sixth
Amendment [to the United States Constitution] the ‘right to counsel’ means the
right to effective assistance of counsel.”
See A.S. v. State, 168 Wis. 2d 995, 1003 n.4, 485 N.W.2d 52
(1992). Where Wisconsin provides a
statutory right to counsel, that right also includes the right to effective
assistance of counsel. See State
ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 253, 548 N.W.2d 45
(1996). As the State explains, however,
Davis did not have a statutory or a constitutional right to counsel for certiorari review of an administrative
decision revoking community supervision.
See State ex rel. Griffin v. Smith, 2004 WI 36, ¶¶22, 31, 270
Wis. 2d 235, 677 N.W.2d 259. Therefore, he may not obtain any relief based
on a claim that the lawyer who assisted him in that review was allegedly
ineffective.[4]
See
Coleman v. Thompson, 501 U.S.
722, 752 (1991) (no claim for ineffective assistance of counsel absent right to
counsel).
¶10 Davis
did, however, have a right to counsel during the revocation hearing. See Griffin, 270 Wis. 2d 235, ¶3. A petition for a writ of habeas corpus is the mechanism for claiming that counsel was
ineffective during that hearing. See State v. Ramey, 121 Wis. 2d
177, 178, 182, 359 N.W.2d 402 (Ct. App. 1984).
Accordingly, we turn to the question of whether the circuit court
properly dismissed the allegations that Davis received ineffective assistance
from the lawyer who represented him in the revocation proceedings.
¶11 A
defendant alleging ineffective assistance of counsel must prove both that
counsel’s performance was deficient and that the deficiency prejudiced the
defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, the defendant
must show “that counsel’s conduct falls below an objective standard of
reasonableness.” State v. Love, 2005 WI
116, ¶30, 284 Wis. 2d 111, 700 N.W.2d 62.
To prove prejudice, the defendant must show “‘a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’” Id. (citation
omitted). Whether counsel’s performance
was deficient and whether the deficiency was prejudicial are questions of law for
our independent review. State
v. Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845 (1990).
¶12 When
a defendant claims that counsel was ineffective, the defendant must seek to
preserve counsel’s testimony in an evidentiary hearing. See
State
ex rel. Panama v. Hepp, 2008 WI App 146, ¶22, 314 Wis. 2d 112, 758
N.W.2d 806. The circuit court may deny the
claim without a hearing, however, “‘if the record conclusively demonstrates
that the defendant is not entitled to relief.’”
State ex rel. Kyles v. Pollard, 2014 WI 38, ¶47, 354
Wis. 2d 626, 847 N.W.2d 805 (citation and one set of quotation marks omitted).
This is such a case.
¶13 When
a court determines that a litigant received ineffective assistance of counsel,
the remedy “is to restore the [litigant] to the position he or she would have
occupied but for counsel’s ineffectiveness.”
See id., ¶32. Therefore, if
Davis were to prevail in his petition for a writ of habeas corpus and prove that he received ineffective assistance
from his revocation counsel, his remedy would be a new revocation hearing. See
State v. Cooks, 2006 WI App 262, ¶¶2, 66, 297 Wis. 2d
633, 726 N.W.2d 322 (ordering a new trial as the remedy for defendant who
received ineffective assistance of counsel before and during trial). The State shows, however, and Davis does not
dispute, that after the revocation proceedings ended, a jury found him guilty
of the crimes underlying the revocation of his supervision. His claims of counsel’s ineffectiveness
during the revocation proceedings are therefore rendered moot. See
State
ex rel. Olson v. Litscher, 2000 WI App 61, ¶3, 233 Wis. 2d 685,
608 N.W.2d 425 (“An issue is moot when its resolution will have no practical
effect on the underlying controversy.”).
This is so because, under Wis.
Admin. Code § HA
2.05(6)(f), a violation of the rules of extended supervision “is proven by a
judgment of conviction arising from conduct underlying an allegation.” Thus,
at a new revocation hearing, the Department of Corrections would offer the
judgment of conviction arising from the crimes against Meghan S.L. The Department would thereby prove that Davis
violated the terms of his extended supervision, and revocation of that
supervision would follow.[5] Because a second revocation hearing would include
proof of Davis’s violations and result again in revocation of his supervision, the
record shows that Davis is not entitled to any relief based on his claims that
counsel was ineffective during his first hearing.
¶14 Davis
disagrees. He asserts that the Department
cannot rely on his criminal convictions to prove that he violated the rules of
extended supervision because he has taken steps to appeal those
convictions. In his view, the
convictions are therefore “non-final” and “tentative.” Davis is wrong. Criminal convictions become final when the
circuit court enters a judgment of conviction.
See State v. One 1997 Ford F-150, 2003 WI App 128, ¶20, 265 Wis. 2d
264, 665 N.W.2d 411. “The fact that
criminal litigants have the right to appeal from a judgment of conviction does
not make the judgment any less final.” Id. Moreover, Davis cites no Wisconsin
authority that renders Wis. Admin. Code
§ HA 2.05(6)(f) inapplicable to judgments of conviction that are in the
appellate pipeline. Indeed, the plain
language of the regulation imposes no such limitation.
¶15 We
turn to Davis’s contention that the circuit court committed procedural errors
in resolving his petition for a writ of habeas
corpus. We understand Davis’s
primary complaint to be that the circuit court “failed to issue the writ to
obtain the record and testimony.” Davis
raises this complaint for the first time on appeal. Although he moved to reconsider the circuit
court’s order dismissing his petition, his motion did not include a claim that
the circuit court failed to require the respondents to file a sufficient
return. As a rule, we do not consider
claims raised for the first time on appeal, see
State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 634, 579 N.W.2d
698 (1998), and we reject his claim for that reason.[6]
¶16 Davis
did allege in his motion to reconsider that the circuit court denied him relief
without ordering him produced for an evidentiary hearing. Although he preserved this issue for
appellate review, his allegation earns him no relief because the circuit court
did not err. As we have explained, a
petitioner seeking a writ of habeas
corpus is not automatically entitled to a hearing to explore a claim of
counsel’s ineffectiveness. See Kyles,
354 Wis. 2d 626, ¶47. When, as
here, the record conclusively shows that the petitioner is not entitled to
relief, the circuit court may deny relief without a hearing. See id.
¶17 Next,
Davis asserts that the circuit court should not have considered the State’s
response to his petition because, he says, “the district attorney is not a
proper respondent.... The proper, and in
fact the only respondent in a habeas action
is the custodian of the institution in which the petitioner lodging the
petition is held.” Davis, however, named
the State as a respondent in this proceeding.
Therefore, we will not hear his complaint that the State filed a
response or his related complaint that the circuit court considered that
response. See Shawn B.N. v. State, 173 Wis. 2d 343, 372, 497 N.W.2d 141
(Ct. App. 1992) (“We will not review invited error.”).
¶18 Last,
we deny Davis’s request that we assess a monetary penalty against the circuit
court pursuant to Wis. Stat. § 782.09. The statute provides that “[a]ny judge who
refuses to grant a writ of habeas corpus,
when legally applied for, is liable to the prisoner in the sum of $1,000.” Id.
Davis raises the issue for the first time on appeal, and his appellant’s
brief includes only a cursory discussion of the basis for his request. As the State points out, Davis’s opening brief
does not analyze: (1) whether a litigant
may request a monetary penalty for the first time on appeal; (2) whether a
litigant may seek the penalty in the habeas
corpus proceeding rather than initiate an independent legal action for the
penalty; or (3) whether a litigant may obtain a financial award when both the
circuit court and this court conclude that the litigant is not entitled to a
writ of habeas corpus. We are satisfied that Davis has not adequately
briefed the issue, and we therefore do not address it.[7] See Pozo,
258 Wis. 2d 796, ¶11 (declining, in an appeal from an order denying a writ
of habeas corpus, to address an
inadequately briefed claim for a financial award under § 782.09).
By
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] This opinion was circulated and approved before Judge Fine’s death.
[2] The administrative law judge found that the Department of Corrections failed to prove allegations of violations that Davis allegedly committed in September 2011 and October 2011.
[3] The Honorable Jane V. Carroll presided over Davis’s action for certiorari review and entered the order affirming revocation of Davis’s supervision.
[4] Davis complains of flaws in the law governing whether he had a right to counsel during certiorari review of a revocation decision. He invites us to re-examine that law. We must decline his invitation. See Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997). Davis also asks us to certify the question of his right to counsel to the supreme court. We see no need to do so.
[5] Davis does not allege that his lawyer could have done anything during the revocation proceedings that would likely have prevented revocation of his extended supervision upon proof of the offenses against Meghan S.L. See State v. Love, 2005 WI 116, ¶30, 284 Wis. 2d 111, 700 N.W.2d 62 (ineffective assistance claim requires showing of reasonable probability that, but for counsel’s allegedly deficient conduct, outcome would have been different). To the extent, if any, that his petition or briefs suggest any allegation of ineffectiveness in this regard, we conclude that he did not adequately raise the issue. Claims of ineffective assistance of counsel must be described with specificity. See State v. Winters, 2009 WI App 48, ¶29, 317 Wis. 2d 401, 766 N.W.2d 754.
[6] For the sake of completeness, we observe that Davis appears to confuse the procedure applicable to a petition for a writ of certiorari with the procedure applicable to a petition for a writ of habeas corpus. In the former proceeding, the writ requires the respondent to file a return consisting of the record made before an administrative body, and the circuit court then reviews that record to resolve the petitioner’s claim. See State ex rel. Kaufman v. Karlen, 2005 WI App 14, ¶¶4-9, 278 Wis. 2d 332, 691 N.W.2d 879. When a petitioner seeks a writ of habeas corpus, however, the required return described by statute does not include a record made before an administrative body. See Wis. Stat. §§ 782.13-782.14 (2011-12). Moreover, in this case, Davis and the State both submitted documents from the administrative record for the circuit court’s review. Davis does not identify any relevant documents that the circuit court did not receive. All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[7] Davis attempts to remedy the deficiencies in his opening brief by including new arguments in his reply brief to support his claim for a financial award under Wis. Stat. § 782.09. We reject the attempt. We do not consider arguments raised for the first time in a reply brief. See Northwest Wholesale Lumber, Inc. v. Anderson, 191 Wis. 2d 278, 294 n.11, 528 N.W.2d 502 (Ct. App. 1995). To do so would “thwart[] the purpose of a brief-in-chief, which is to raise the issues on appeal, and the purpose of a reply brief, which is to reply to arguments made in a respondent’s brief.” Verex Assurance, Inc. v. AABREC, Inc., 148 Wis. 2d 730, 734 n.1, 436 N.W.2d 876 (Ct. App. 1989).