The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHARLES BROWN,
Petitioner,
v. Case No. 24-CV-236-SCD
MICHAEL MEISNER,
Warden, Fox Lake Correctional Institution,
Respondent.
DECISION AND ORDER
Charles Brown challenges his 2014 Wisconsin conviction for possessing with intent to
distribute heroin. After pleading guilty and being sentenced, Brown sought post-conviction
relief, arguing that his trial lawyer should have moved to suppress the drugs. The state circuit
court denied the motion following an evidentiary hearing, Brown hired a new lawyer, and
Brown filed a second post-conviction motion alleging ineffective assistance of trial counsel.
The circuit court denied that motion without a hearing, and the state appellate courts
affirmed. Proceeding without the assistance of counsel, Brown later filed a collateral attack
asserting various constitutional claims, including ineffective assistance of both trial and post-
conviction counsel. The circuit court denied that motion on procedural grounds, and Brown’s
appeal was unsuccessful.
Brown has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging the constitutionality of his state conviction. He asserts sixteen potential grounds
for relief. The respondent has moved to dismiss the petition, arguing that all sixteen claims
are procedurally barred. Because Brown procedurally defaulted his claims and has failed to
show an excuse for that default, I will grant the respondent’s motion, deny Brown’s petition,
and dismiss this action.
BACKGROUND
In March 2014, Charles Brown was the passenger in a vehicle stopped in Racine
County for an alleged traffic violation. See Respt’s Br. Ex. 7, at 6, ECF No. 13-7. The deputy
who made the stop claimed that the vehicle didn’t have a front license plate and had a wire
obscuring the rear license plate, both violations of state law. After observing a strong air
freshener odor coming from the vehicle and learning that both the driver and the passenger
(Brown) had prior drug convictions, the deputy called for a K9 unit. The deputy ordered
Brown and the driver to exit the vehicle for an open-air sniff, and the canine alerted to the
presence of drugs. Ex. 7, at 6–7. During a pat-down search, the deputy felt a hard object in
Brown’s groin area. Ex. 7, at 7. The deputy felt inside Brown’s underwear and pulled out a
wrapped ball that contained over 200 grams of heroin. Ex. 7, at 7–8.
The State of Wisconsin charged Brown with possessing with intent to deliver more
than 50 grams of heroin. See Respt’s Br. Ex. 6, at 9, ECF No. 13-6. Brown waived his
preliminary hearing and, at the advice of counsel, pleaded guilty to the charged offense. In
exchange for his plea, the State agreed to recommend seven to ten years of confinement. At
sentencing, the trial court indicated that seven years wasn’t enough time in prison, believing
that was less than what Brown had served on his last conviction. See Petr’s Resp. 15,
ECF No. 16. The court sentenced Brown to twenty years in prison and ten years of extended
supervision. See Respt’s Br. Ex. 1, ECF No. 13-1.
Brown sought post-conviction relief, arguing that his trial lawyer was ineffective for
not moving to suppress the drugs seized during the traffic stop. See Respt’s Br. Ex. 10,
ECF No. 13-10. Brown asserted that the deputy impermissibly prolonged the stop to conduct
the canine sniff, lacked reasonable suspicion for the pat-down, and exceeded the scope of a
proper frisk by feeling Brown’s genitals. The circuit court held an evidentiary hearing on the
motion, at which Brown and his trial lawyer (Mark Richards) testified. See Respt’s Br. Ex. 9,
ECF No. 13-9. Brown’s post-conviction lawyer (Dustin Haskell) did not subpoena any of the
law enforcement officers involved in the stop. Attorney Haskell believed the State retained the
burden to demonstrate that the evidence was lawfully seized, and he suggested the court could
hold a suppression hearing if the record was inadequate. Ex. 9, at 33–37. The circuit court
denied the post-conviction motion, finding that Attorney Richards made a strategic decision
to forego filing a suppression motion. Ex. 9, at 37–50.
Brown later obtained new counsel (Robert Meyeroff) and filed a second post-
conviction motion alleging ineffective assistance of trial counsel. See Respt’s Br. Ex. 11,
ECF No. 13-11. He asserted that Attorney Richards was ineffective for not filing a suppression
motion challenging the stop and the frisk. He also asserted that the State intentionally
withheld a police report regarding the stop, in violation of Brady v. Maryland, 373 U.S. 83
(1963). The circuit court scheduled a hearing on the motion; however, at the hearing, the court
determined that the officers involved in the stop and the frisk wouldn’t be allowed to testify
because the court had already decided the trial counsel issue. See Ex. 6, at 10–11, 14–15. The
court therefore denied the second post-conviction motion without an evidentiary hearing. See
Petr’s Resp. Ex. 3, ECF No. 16-3 at 18–30; see also Respt’s Br. Ex. 2, at 2, ECF No. 13-2.1
Brown filed a direct appeal, arguing that the circuit court should have held an
evidentiary hearing on the second post-conviction motion. See Ex. 6. The Wisconsin Court
1 Brown did not argue his Brady claim at the hearing, and the circuit court did not address that claim when it
denied the motion. Ex. 2, at 2 n.3.
of Appeals affirmed Brown’s conviction and the order denying his second post-conviction
motion. See Ex. 2.2 Relying on State v. Allen, 2004 WI 106, 682 N.W.2d 433, the court held
that “the circuit court properly exercised its discretion when it denied the [trial counsel] claim
without an evidentiary hearing,” as “the record conclusively demonstrated that Brown was
not entitled to relief on the ineffective assistance of trial counsel claim made in his second
postconviction motion.” Ex. 2, at 3–4. In reaching that finding, the court determined that “the
second postconviction motion . . . was merely an attempt to relitigate an issue already
decided.” Ex. 2, at 3. The Wisconsin Supreme Court subsequently denied Brown’s petition
for review. See Respt’s Br. Ex. 4, ECF No. 13-4.3
Proceeding without the assistance of counsel, in January 2022, Brown filed a collateral
attack under section 974.06 of the Wisconsin statutes. See Respt’s Br. Ex. 8, ECF No. 13-8.
He asserted several constitutional claims, including ineffective assistance of Attorney Haskell
for not subpoenaing the officers involved in the stop and the frisk for the post-conviction
evidentiary hearing and for not investigating issues related to the traffic stop. He also asserted
that Attorney Meyeroff was ineffective for not raising the other constitutional issues during
his direct appeal. The circuit court denied the motion without a hearing. See Respt’s Br. Ex. 3,
at 3, ECF No. 13-3.
The Wisconsin Court of Appeals summarily affirmed the circuit court’s order. See
Ex. 3.4 The court determined that Brown’s ineffective assistance of trial counsel claim was
previously litigated and rejected on its merits and, thus, could not be raised a second time.
Ex. 3, at 4. The court held that Brown’s remaining post-conviction claims were procedurally
2 State v. Brown, No. 2019AP102-CR, 2021 WL 8534040, 2021 Wisc. App. LEXIS 1224 (Wis. Ct. App. Mar. 3,
2021).
3 State v. Brown, No. 2019AP102-CR, 2021 WL 9781622, 2021 Wisc. LEXIS 575 (Wis. Oct. 18, 2021).
4 State v. Brown, No. 2022AP383, 2023 WL 3991765, 2023 Wisc. App. LEXIS 647 (Wis. Ct. App. June 14, 2023).
barred under State v. Escalona-Naranjo, 517 N.W.2d 157 (Wis. 1994), because they could have
been raised on direct review. Ex. 3, at 3–4. Relying on State v. Romero-Georgana, 2014 WI 83,
849 N.W.2d 668, the court determined that the alleged ineffective assistance of Attorney
Meyeroff was not a sufficient reason to overcome the Escalona-Naranjo procedural bar, as
Brown failed to sufficiently explain why the issues he wanted to pursue were clearly stronger
than the issues Meyeroff presented on direct review. Ex. 3, at 3–5.
The Wisconsin Supreme Court denied Brown’s petition for review of that appeal on
October 30, 2023. See Respt’s Br. Ex. 5, ECF No. 13-5.5
In February 2024, Brown filed a federal habeas petition alleging sixteen potential
grounds for relief. See Pet., ECF No. 1. The matter was randomly assigned to me, and all
parties consented to magistrate-judge jurisdiction under 28 U.S.C. § 636(c) and Fed. R. Civ. P.
73(b). See ECF Nos. 4, 9. Michael Meisner, the warden who has custody of Brown, has moved
to dismiss the petition. See Respt’s Mot., ECF No. 12; Respt’s Br., ECF No. 13. Brown has
submitted a brief opposing the motion, see ECF No. 16, and a request for an evidentiary
hearing, see ECF No. 17, and Meisner has filed a reply brief, see ECF No. 21.
DISCUSSION
Brown raises sixteen potential grounds for relief in his petition. See Pet. 6–17. The
sixteen grounds for relief include five ineffective assistance of trial counsel claims related to
the alleged lack of investigation, failing to challenge the traffic stop and the pat-down search,
and not sufficiently explaining his plea options (Grounds 2, 9, 12, 15, and 16). Brown also
claims that his post-conviction lawyers were ineffective for not pursuing certain issues during
Brown’s direct appeal (Ground 1). Finally, Brown challenges the lawfulness of the stop and
5 State v. Brown, No. 2022AP000383, 2023 WL 9418604, 2023 Wisc. LEXIS 644 (Wis. Oct. 30, 2023).
the search, including alleging misconduct by the officers involved (Grounds 3, 5, 8, 11, and
14); claims that the trial court judge and the prosecutor violated his due process rights
(Ground 4); alleges judicial bias and errors at sentencing (Grounds 7 and 10); and asserts that
the circuit court erred in denying his post-conviction motion (Ground 6) and that the court of
appeals erred in affirming the denial of his collateral attack (Ground 13).
Meisner has moved to dismiss the petition, arguing that all sixteen grounds for relief
are procedurally defaulted. “[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state court denied based on an
adequate and independent state procedural rule.” Whyte v. Winkleski, 34 F.4th 617, 623 (7th
Cir. 2022) (quoting Davila v. Davis, 582 U.S. 521, 527 (2017)). A state-law procedural ground
“is adequate if it is ‘firmly established and regularly followed as of the time when the
procedural default occurred.’” Triplett v. McDermott, 996 F.3d 825, 829 (7th Cir. 2021) (quoting
Richardson v. Lemke, 745 F.3d 258, 271 (7th Cir. 2014)). “It is independent of federal law if it
does not depend on the merits of the petitioner’s claim.” Id. (citing Stewart v. Smith, 536 U.S.
856, 860 (2002) (per curiam)). “To bar federal review, the state law ground must also have
been invoked and actually relied upon by the last state court to consider the petitioner’s
claim.” Id. (citing Harris v. Reed, 489 U.S. 255, 261–62 (1989)). A federal habeas petitioner can
obtain merits review of a defaulted claim if he “can show both cause for and prejudice from
the default or can demonstrate that the . . . failure to consider the claim would result in a
fundamental miscarriage of justice.” Richardson, 745 F.3d at 272 (citing Bolton v. Akpore, 730
F.3d 685, 696 (7th Cir. 2013)).
I. This Court is Precluded from Reaching the Merits of Brown’s Ineffective
Assistance of Trial Counsel Claims
Meisner argues that Brown’s ineffective assistance of trial counsel claims are barred
under the state procedural rule established in Allen. In Wisconsin, ineffective assistance of
trial counsel claims must first be brought in a post-conviction motion as part of the direct
appeal. See Lee-Kendrick v. Eckstein, 38 F.4th 581, 586–87 (7th Cir. 2022) (citing Page v. Frank,
343 F.3d 901, 905–06 (7th Cir. 2003)). The circuit court cannot grant relief on an ineffective
assistance of trial counsel claim without holding an evidentiary hearing (known in Wisconsin
as a Machner hearing, after State v. Machner, 285 N.W.2d 905 (Wis. Ct. App. 1979)) and hearing
the trial lawyer’s side of the story. See Pidgeon v. Smith, 785 F.3d 1165, 1169–70 (7th Cir. 2015)
(citing Allen, 682 N.W.2d at 437 n.3). To secure a Machner hearing, the movant must provide
“sufficient material facts—e.g., who, what, where, when, why, and how—that, if true, would
entitle him to the relief he seeks.” Allen, 682 N.W.2d at 436. “If the motion does not raise
facts sufficient to entitle the defendant to relief, or if it presents only conclusory allegations,
or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit
court has the discretion to grant or deny a hearing.” State v. Ruffin, 2022 WI 34, ¶ 28, 974
N.W.2d 432, 438 (citing Allen, 682 N.W.2d at 437).
The Seventh Circuit has consistently held that Wisconsin’s Allen rule “is an adequate
and independent state procedural rule.” Whyte, 34 F.4th at 625 (citing Triplett, 996 F.3d at 830;
Lee v. Foster, 750 F.3d 687, 693–94 (7th Cir. 2014)).
Here, the Wisconsin Court of Appeals indisputably rejected Brown’s ineffective
assistance of trial counsel claim under Allen. The court quoted Allen directly and held that the
circuit court properly exercised its discretion when it denied Brown’s second post-conviction
motion without a Machner hearing because the record conclusively demonstrated that Brown
was not entitled to relief on his trial counsel claim. See Ex. 2, at 3–4. The court explained that
Brown raised the same trial counsel claim in his first post-conviction motion, which the circuit
court rejected on the merits. According to the court of appeals, Brown was not entitled to
relitigate an issue already decided. The court did not address the merits of Brown’s claims.
Brown insists that the Allen procedural rule should not bar his ineffective assistance of
trial counsel claims, but his arguments are not convincing. First, Brown contends that Allen
shouldn’t apply because the second post-conviction motion merely supplemented the first
post-conviction motion, and he received a Machner hearing on the first one. The record,
however, conclusively establishes that on appeal Brown challenged only the denial of the
second post-conviction motion. See Ex. 6 (arguing that Brown was entitled to a full evidentiary
hearing on his supplemental post-conviction motion); Ex. 2, at 2 (“On appeal, Brown argues
that he should have had an evidentiary hearing on his second postconviction motion.”).
Second, Brown maintains that the Wisconsin Court of Appeals incorrectly applied the Allen
rule. But “[i]n assessing the adequacy of a state procedural ruling, federal courts do not review
the merits of the state court’s application of its own procedural rules.” Crockett v. Butler, 807
F.3d 160, 167 (7th Cir. 2015) (citing Lee, 750 F.3d at 694). Rather, the issue is “whether the
rule invoked was ‘firmly established and regularly followed.’” Id. (quoting Beard v. Kindler, 558
U.S. 53, 60 (2009)). It was. Finally, Brown appears to assert that his post-conviction lawyers
are to blame for any pleading deficiencies. It’s true that ineffective assistance of post-
conviction counsel can sometimes excuse a procedural default. See Whyte, 34 F.4th at 624–25.
However, as will be explained later, Brown’s post-conviction counsel claim cannot excuse the
default here because that claim is itself defaulted. See id.
Accordingly, Brown’s ineffective assistance of trial counsel claims are procedurally
defaulted, and he hasn’t offered a sufficient excuse for that default. I am therefore precluded
from reaching the merits of those claims on federal habeas review. The Allen procedural bar
applies to Grounds 2, 9, 12, 15, and 16 of Brown’s petition.
II. This Court is Also Precluded from Reaching the Merits of the Constitutional
Claims Brown Raised During His State Collateral Attack
Similarly, Meisner argues that the constitutional claims Brown raised in his state
collateral attack are barred under the state procedural rule established in Escalona-Naranjo. “In
Escalona-Naranjo, the Supreme Court of Wisconsin held that a defendant forfeits the right to
raise a constitutional issue in a Wis. Stat. § 974.06 postconviction motion ‘that could have
been raised on direct appeal or in a sec. 974.02 motion.’” Whyte, 34 F.4th at 624 (quoting
Escalona-Naranjo, 517 N.W.2d at 164). “In other words, ‘a defendant must raise all available
claims for relief . . . at the earliest opportunity,’ or else such claims are procedurally
defaulted.” Id. (quoting Garcia v. Cromwell, 28 F.4th 764, 772 (7th Cir. 2022)). This procedural
default “may be excused if the defendant can show a ‘sufficient reason’ for not raising the
issue earlier.” Id. (quoting Escalona-Naranjo, 517 N.W.2d at 162).
The Seventh Circuit “has held that Escalona-Naranjo’s bar constitutes an adequate and
independent state procedural ground, which forecloses federal review.” Whyte, 34 F.4th at 624
(citing Garcia, 28 F.4th at 767; Perry v. McCaughtry, 308 F.3d 682, 690, 692 (7th Cir. 2002)).
Here, the Wisconsin Court of Appeals indisputably relied on Escalona-Naranjo to reject
most of the constitutional claims Brown raised in his collateral attack. The court accurately
noted that Brown raised only two claims during his direct appeal: ineffective assistance of trial
counsel and a Brady claim. See Ex. 3, at 2; see also Ex. 6. However, Brown attempted to raise
several other constitutional claims in his pro se collateral attack under section 974.06, see Ex. 3,
at 3—the same claims he presents in his federal habeas petition, see Pet. 6–17. Relying on
Escalona-Naranjo, the court of appeals held that Brown could not pursue his ineffective
assistance of trial counsel claim or his Brady claim because both claims were previously
litigated and rejected on their merits as part of Brown’s direct appeal. Ex. 3, at 3–4. The court
explicitly held that Brown’s other claims were procedurally barred under Escalona-Naranjo, as
Brown could have raised them during his direct appeal (but didn’t). Ex. 3, at 4–5. The court
did not address the merits of Brown’s claims.
Brown insists that the Escalona-Naranjo procedural bar should not apply for two
reasons. First, he accuses Meisner of improperly attempting to construe his supplemental
post-conviction motion as a collateral attack under section 974.02 or 974.06. Meisner,
however, accurately characterized the supplemental motion as part of the direct review
process. See Respt’s Br. 4–5. So did the Wisconsin Court of Appeals. See Ex. 3, at 2. Even if
the court of appeals had erred, that would not matter because the issue here is whether the
state’s procedural rule was firmly established, was regularly followed, and did not depend on
the merits of Brown’s claims. It was, and it didn’t. Second, Brown alleges ineffective assistance
of post-conviction counsel as a “sufficient reason” to excuse his default. As will be explained
next, that claim is itself defaulted.
Accordingly, the constitutional claims Brown raised in his state collateral attack are
procedurally defaulted, and he hasn’t offered a sufficient excuse for that default. I am therefore
precluded from reaching the merits of those claims on federal habeas review. The Escalona-
Naranjo procedural bar applies to Grounds 3, 4, 5, 6, 7, 8, 10, 11, and 14 of Brown’s petition.
III. This Court is Also Precluded from Reaching the Merits of Brown’s Ineffective
Assistance of Post-Conviction Counsel Claim
Finally, Meisner argues that Brown’s ineffective assistance of post-conviction counsel
claim is barred under the state procedural rule established in Romero-Georgana. In Romero-
Georgana, the Wisconsin Supreme Court held that “ineffectiveness of postconviction counsel
may be a sufficient reason for failing to raise an available claim in an earlier motion or on
direct appeal.” Whyte, 34 F.4th at 625 (quoting Romero-Georgana, 849 N.W.2d at 678. “But the
mere suggestion that postconviction counsel was ineffective does not by itself open the door
to merits review of a defaulted claim. Instead, a prisoner must provide specific, nonconclusory
factual allegations explaining why his postconviction counsel was ineffective.” Garcia, 28 F.4th
at 773 (citing State v. Allen, 2010 WI 89, ¶¶ 84–91, 786 N.W.2d 124, 139–40). “One element
of this pleading burden requires factual allegations showing that the defaulted claims were
‘clearly stronger’ than the issues postconviction counsel chose to present.” Id. at 767 (quoting
Romero-Georgana, 849 N.W.2d at 679).
The Seventh Circuit has recognized Romero-Georgana’s pleading standard as an
adequate and independent state procedural ground. See Garcia, 28 F.4th at 774–75.
Here, the Wisconsin Court of Appeals expressly relied upon Romero-Georgana to reject
Brown’s ineffective assistance of post-conviction counsel claim. The court quoted Romero-
Georgana directly and held that Brown had “failed to articulate why the issues he . . . wishe[d]
to raise were clearly stronger than the issues postconviction counsel chose to present.” Ex. 3,
at 4–5. The court noted that Brown mentioned the “clearly stronger” standard only once in
passing in his collateral attack. Ex. 3, at 5. However, according to the court of appeals, Brown
“failed to perform the requisite analytical exercise of comparing the strength of the arguments
he . . . raises[d in his collateral attack] with the strength of the arguments his postconviction
counsel previously pursued.” Ex. 3, at 5. The court did not address the merits of Brown’s
claims.
Brown insists that the Romero-Georgana procedural rule should not bar his ineffective
assistance of post-conviction counsel claim, but his arguments are not convincing. First,
Brown contends that he did sufficiently articulate why the claims raised in his collateral attack
were clearly stronger than the claims raised during his direct appeal. However, as explained
above, the correctness of the state court’s procedural ruling is not at issue here. The rule was
firmly established and regularly followed at the time and did not depend on the merits of
Brown’s claims. Second, Brown says that he should not be punished for the constitutional
errors of his lawyers. But Brown filed his collateral attack pro se; thus, “errors by counsel in
the first round of postconviction proceedings cannot serve as cause to excuse [Brown’s] own
default in the second.” Garcia, 28 F.4th at 775. Finally, Brown asserts that it would be a
miscarriage of justice to overlook his underlying constitutional claims. To proceed through
the narrow miscarriage-of-justice gateway, Brown needs to submit evidence that he is actually
innocent of the crime of conviction—possessing with the intent to deliver heroin; a showing
of legal innocence will not do. See Boyer v. United States, 55 F.3d 296, 300 (7th Cir. 1995). At
best, Brown presents evidence only that the drugs were discovered during an unlawful search,
not that he didn’t possess the drugs at all. Brown therefore has not satisfied the miscarriage-
of-justice exception.
Accordingly, Brown’s ineffective assistance of post-conviction counsel claim is
procedurally defaulted, and he hasn’t offered a sufficient excuse for that default. I am therefore
precluded from reaching the merits of that claim on federal habeas review. The Romero-
Georgana procedural bar applies to Ground 1 of Brown’s petition. In Ground 13, Brown asserts
that the Wisconsin Court of Appeals erred in finding that Brown failed to compare the
strength of his collateral attack claims to the claims raised by post-conviction counsel. This
ground for relief is merely an attempt to overcome the Romero-Georgana procedural bar. It
therefore is subsumed with the above analysis.
* * *
Because Brown’s ineffective assistance of counsel claims are defaulted themselves, all
of Brown’s claims are fully defaulted.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts, “[t]he district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Where a district court denies a habeas petition
on procedural grounds, the petitioner must show both “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right, and
that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000) (emphasis added). Here, no
reasonable jurist would find it debatable whether Brown procedurally defaulted the claims
raised in his federal habeas petition. I will therefore deny a certificate of appealability.
CONCLUSION
In sum, federal merits review is foreclosed of all sixteen grounds for relief asserted in
Brown’s petition for habeas relief. The state appellate court’s decisions rest on the independent
and adequate state-law grounds established in Allen, Escalona-Naranjo, and Romero-Georgana,
and Brown has not established an excuse for those defaults. Accordingly, for all the foregoing
reasons, the court GRANTS the respondent’s motion to dismiss petition for writ of habeas
corpus, ECF No. 12; DENIES the petitioner’s request for an evidentiary hearing, ECF No. 17;
DENIES the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 by a person in
state custody, ECF No. 1; and DISMISSES this action. The court also DENIES the petitioner
a certificate of appealability. The clerk of court shall enter judgment denying the petition and
dismissing this action.
SO ORDERED this 13th day of November, 2024.
a C. DRIES
United States Magistrate Judge
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