Petition for Writ of Certiorari — Scott E. Schmidt, Petitioner v. Brian Foster, Warden

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

SCOTT ERIC SCHMIDT,

Petitioner,

v.

Case No. 13-C-1150

WILLIAM J. POLLARD,

Respondent.

ORDER APPOINTING COUNSEL, SCHEDULING HEARING,

AND SETTING A BRIEFING SCHEDULE

Scott Schmidt filed a petition for writ of habeas corpus challenging his May 12, 2010,

judgment of conviction in Outagamie County Circuit Court on one count of first-degree

intentional homicide, one count of first-degree recklessly endangering safety, and one count

of bail jumping. (Doc. 12-1 at 1-2.) After the jury returned a guilty verdict on the three

counts, the trial court sentenced Schmidt to life imprisonment with eligibility for extended

supervision after forty years. (Doc. 12-1 at 1.) Schmidt filed a post-conviction motion

seeking a new trial on the homicide charge, arguing that he was denied his right to present

his chosen defense when the trial court refused to permit him to present evidence related

to the affirmative defense of adequate provocation at trial.

(Doc. 12-2 at 18-19.)

Additionally, he argued that he was denied his right to counsel during the pretrial in-camera

hearing when his attorney was not permitted to participate and assist him in presenting an

offer of proof with respect to the planned defense. (Id.) When the post-conviction motion

was denied, Schmidt filed a direct appeal with the Wisconsin Court of Appeals. State v.

Schmidt, Appeal No. 2011AP001903. On appeal he raised the same arguments asserted

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in his post-conviction motion. The Wisconsin Court of Appeals affirmed his conviction, and

the Wisconsin Supreme Court denied his petition for writ of certiorari. State v. Schmidt,

2012 WI App 113, cert. denied, 346 Wis. 3d 284 (2013). Having reviewed the briefs and

record filed by respondent, the court will appoint counsel and schedule a hearing.

This petition is governed by the provisions of the Anti-Terrorism and Death Penalty

Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L.

Ed. 2d 481 (1997). AEDPA allows a district court to issue a writ of habeas corpus on behalf

of a person in custody pursuant to a state court judgment “only on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United States.” U.S.C.

§ 2254(a). The court can only grant an application for habeas relief if it meets the

requirements of 28 U.S.C. § 2254(d), which provides:

[a]n application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim —

(1) 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; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.

This standard is “difficult to meet” and “highly deferential.” Cullen v. Pinholster, 563

U.S.170, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011). Habeas review must not be

used as a “vehicle to second-guess the reasonable decisions of state courts.” Parker v.

Matthews, 132 S. Ct. 2148, 2149, 183 L. Ed. 2d 32 (2012) (per curiam), quoting Renico v.

Lett, 559 U.S. 766, 779, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010). Indeed, Supreme Court

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case law requires that the “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.”

Harrington v. Richter, 562 U.S. 86, 103, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).

At the same time, AEDPA's deferential standard of review applies only to claims that

were actually “adjudicated on the merits in State court proceedings.” § 2254(d). Where

state courts did not reach a federal constitutional issue, § 2254(d) deference applies “only

to those issues the state court explicitly addressed.” Quintana v. Chandler, 723 F.3d 849,

853 (7th Cir. 2013), citing Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527, 156 L. Ed.

2d 471 (2003). As a consequence, the court must inquire into whether a claim was

adjudicated on the merits to determine whether in AEDPA's “highly deferential standards

kick in.” Fargo v. Douma, 2016 WL 5415747 at *8 (citing Davis v. Ayala, 135 S. Ct. 2187,

2198 (2015) (citation omitted)).

To be adjudicated on the merits, the state court is not required to give reasons.

Johnson v. Williams, 133 S. Ct. at 1094 (2015), quoting Harrington, 131 S. Ct. at 784-85;

see also Fargo, 2016 WL 5415747 at 10-11. “When a federal claim has been presented

to a state court and the state court has denied relief, it may be presumed that the state court

adjudicated the claim on the merits in the absence of any indication or state law procedural

principles to the contrary." Id. (quoting Richter, 131 S. Ct. at 784-785). Moreover, the

federal claim may be regarded as adjudicated on the merits where the state standard

subsumes the federal standard. Johnson, 133 S. Ct. 1099, 185 L. Ed. 2d 105 at (2013).

On the other hand, where the state courts did not reach a federal constitutional issue, “the

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claim is reviewed de novo.” Cone v. Bell, 556 U.S. 449, 472, 129 S. Ct. 1769, 173 L. Ed.2d

701 (2009).

Schmidt’s first argument is that he was deprived of his right to present a defense

when he was not allowed to argue adequate provocation. Schmidt framed the issue in

constitutional terms before the state courts; however, the trial court and the Wisconsin Court

of Appeals decided this issue as a matter of state evidence law. In briefing, respondent has

asserted that this issue was not decided as a matter of federal law and therefore not

cognizable under § 2254:

A review of the state court’s decision reveals that the court’s resolution of

Schmidt’s adequate-provocation claim cannot fairly be read as relying primarily

on federal law or interwoven with federal law. In resolving that claim, the state

court cited only Wisconsin cases and statutes. The state court did not treat his

adequate-provocation claim as being interwoven with federal law, and neither

should this court.

(Doc. 35 at 6.) As indicated by respondent, the Wisconsin Court of Appeals’ decision was

based on the application of two Wisconsin Statutes and Wisconsin cases that did not

address the Sixth Amendment right to present a defense. Because the court believes this

is an issue that warrants additional consideration, the court will appoint counsel based on

Schmidt’s previous request that was denied without prejudice and schedule a hearing.

In addition to addressing the standard that applies, counsel shall address

respondent’s assertion that the first issue is not cognizable under § 2254, the tension

between the state evidence law and the constitutional issues raised by Schmidt, and the

constitutional implications of restricting counsel’s participation during an in-camera

evidentiary hearing. Counsel shall review the transcripts and the statements made by the

court regarding the burden of production on the adequate provocation defense and the

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manner in which the hearing was conducted. In addition to reviewing the approach of the

Seventh Circuit Court of Appeals in Johnson v. Chrans, 844 F.2d 482, 484 (7th Cir. 1988),

the parties should be prepared to address the recent Seventh Circuit decision in Kubusch

v. Neal, 2016 WL 5335495 (7th Cir. Sept. 23, 2015), where the Seventh Circuit concluded

that the “the last word does not belong to state law”—“it belongs to the Due Process Clause

of the Fourteenth Amendment to the U.S. Constitution.” Id., 2016 WL 5335495 at *7. Now,

therefore,

IT IS ORDERED that the Federal Defender Services shall appoint counsel for Schmidt

under 18 U.S.C. § 3006A. Counsel shall consult with Schmidt and advise the court whether

Schmidt will appear in person or telephonically for the hearing.

IT IS FURTHER ORDERED that the parties shall appear for a hearing on February

21, 2017, at 11:00 AM. On or before January 24, 2017, the petitioner may file a brief

addressing the issues raised above. Respondent may file a reply on or before February 14,

2017.

Dated at Milwaukee, Wisconsin, this 7th day of December, 2016.

BY THE COURT

/s/ C.N. Clevert, Jr.

C.N. CLEVERT, JR.

U.S. DISTRICT JUDGE

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