PROMOTOR v. POLLARD

Promotor petitioned the federal district court for a writ of habeas corpus, asserting that his due process rights were violated because he was sentenced based on inaccurate information. The court denied his petition, ruling that the due process claim was procedurally barred because the Wisconsin Court of Appeals' finding of waiver was an adequate and independent state law ground. We review the district court's findings of fact for clear error and its rulings on questions of law de novo. Smith v. Gaetz, 565 F.3d 346, 351 (7th Cir. 2009); Foster v. Schomig, 223 F.3d 626, 634 n. 4 (7th Cir. 2000).

Generally, a federal court may not grant habeas relief if the state court's decision was based on an adequate and independent state law ground. Ward v. Jenkins, 613 F.3d 692, 696 (7th Cir. 2010). The adequacy of the state ground decision is a question of federal law, and the ground is considered adequate only if the state court applies the rule in a consistent and principled way. Miranda v. Leibach, 394 F.3d 984, 992 (7th Cir. 2005). An adequate and independent state law ground does not, however, absolutely preclude review of a procedurally defaulted claim during federal habeas review. An equitable exception exists if the petitioner can establish cause and prejudice for the default, or establish that the failure to consider the defaulted claim will result in a fundamental miscarriage of justice. Dretke v. Haley, 541 U.S. 386, 388, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004); Johnson v. Loftus, 518 F.3d 453, 455-56 (7th Cir. 2008).

Promotor contends that the state court's finding of waiver was not an adequate and independent state law ground because Wisconsin's application of waiver law wag unsettled at the time of his sentencing. He further argues that even if the law were settled, cause and prejudice precludes a finding of default. We reject these arguments.

Promotor accurately argues that a procedural default does not bar consideration of a federal claim unless the procedure is a "firmly established and regularly followed state practice." Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010). Further, the state rule at issue must have been consistently applied at the time of the alleged default. Franklin v. Gilmore, 188 F.3d 877, 882 (7th Cir. 1999). In support of his position that waiver law was not firmly established in Wisconsin in 2003, Promotor offers State v. Groth, which states: "Whether, given the paramount importance of the integrity of the sentencing process, waiver may be invoked to preclude a defendant's challenge to a sentencing based on inaccurate information remains unclear; the cases the parties cite simply do not say." 258 Wis.2d 889, 655 N.W.2d 163, 172 (Wis.Ct.App. 2002) (internal citations and quotations omitted), abrogated on other grounds by State v. Tiepelman, 291 Wis.2d 179, 717 N.W.2d 1 (2006). In Groth, the prosecutor repeatedly asserted, without any support in the record, that the defendant beat his pregnant girl-friend. Because there was no support in the record for the inflammatory statements and the court apparently relied on them, the court found that the integrity of the sentencing process required resentencing. Groth, 655 N.W.2d at 173. Groth is distinguishable from this case for significant reasons. The inaccurate information in Groth came from the prosecutor, not the defense. And there was no factual basis for the information, but here, the information was submitted in a presentence report and reviewed before filing. The most important aspect of Groth, though, is that the court decided that the interests of justice required excusing the waiver.

Groth aligns with the regular practice of Wisconsin courts, which have consistently found that a party who fails to object at the trial court waives the right to later appeal that issue unless justice so requires. This general principle was described in State v. Holt: "The general rule that an objection not made to the trial court is waived is rooted in principles of efficient judicial administration. Those principles demand that convictions remain in repose unless error has been committed or an injustice has been done." 128 Wis.2d 110, 382 N.W.2d 679, 686 (Wis.Ct. App. 1985), superseded by statute on other grounds by Wis. STAT. § 940.225(7). See also State v. Boshcka, 178 Wis.2d 628, 496 N.W.2d 627, 632 (Wis.Ct.App. 1992) ("unobjected-to errors are generally considered waived; and the rule applies to both evidentiary and constitutional errors.") And this rule has been repeatedly applied to defendants, like Promotor, who fail to object to allegedly inadmissible or inaccurate information. See, e.g., State v. Gove, 148 Wis.2d 936, 437 N.W.2d 218, 218 (1989) (defendant who "actively contributed to what he now claims was trial court error" waived right to contest error); Handel v. State, 74 Wis.2d 699, 247 N.W.2d 711, 714 (1976) (court did not err in considering facts in presentence report that were not challenged by defendant).

As a general rule, Wisconsin courts find waiver if information is not objected to at the trial court. And this was true in 2003 at the time of Promoter's sentencing. But there is a difference between a consistent application and an absolute application. A regular practice may still, in the interest of justice, allow room for flexibility. See, e.g., State v. Leitner, 247 Wis.2d 195, 633 N.W.2d 207, 215 (Wis.Ct.App. 2001) (choosing to "ignore the . . . waiver rule" because the case presented an important recurring issue). Wisconsin courts have regularly followed the rule that information that is not contested at trial cannot be objected to later. The exceptions do not disprove the rule. We find that Wisconsin waiver law was applied in a consistent and principled way, and therefore constitutes an adequate and independent state law ground that cannot be reviewed absent cause and prejudice.

Even though Promotor procedurally defaulted his claim regarding the allegedly inaccurate information in the Alternative Report, the default could be excused if he can establish cause and prejudice, or establish that the failure to consider the defaulted claim will result in a fundamental miscarriage of justice. Dretke, 541 U.S. at 388, 124 S.Ct. 1847; Loftus, 518 F.3d at 455-56. Promotor does not argue that failure to consider his defaulted claim will result in a fundamental miscarriage of justice. Instead, he asserts that a language barrier provides cause to excuse his default. Alternatively, he argues that the waiver was due to the deficient performance of his attorney. Both of these arguments must fail.

Cause for a default is ordinarily established by showing that some type of "external impediment" prevented the petitioner from presenting his claim. Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). Prejudice is established by showing that the violation of the petitioner's federal rights "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. (emphasis in original) (citation omitted). According to the Alternative Report, Promotor speaks Spanish, and is not literate in English. He argues that this establishes cause to excuse his defaulted objection. But we have found that circumstances such as youth and lack of education — which similarly impede communication — do not constitute cause. Dettinger v. Bowen, 301 F.3d 758, 766 (7th Cir. 2002). And we have also explicitly held that illiteracy does not constitute cause. Henderson v. Cohn, 919 F.2d 1270, 1272 (7th Cir. 1990). In addition, during Promoter's lengthy sentencing hearing, where a Spanish-language interpreter was present the entire time, the court proceeded methodically through each presentence report. It suggested small typographical corrections and asked each party if any other "additions, deletions, or revisions" were necessary. At least three times during the court's discussion of the DOC presentence report, the record reflects that there were private attorney-client discussions between Promotor and his lawyer. After each discussion, his lawyer stated whether Promotor agreed with the proposed change to the report. These discussions show that Promotor was not prevented from voicing disapproval, and in fact was given ample opportunity to express any objections. Thus his failure to also object to aspects of the Alternative Report was an internal decision, not an external impediment.

Alternatively, Promotor argues that cause to excuse his procedural default exists because he received ineffective assistance of counsel. Ineffective assistance of counsel can constitute cause to set aside a procedural bar. Gaetz, 565 F.3d at 352. However, a claim of attorney ineffectiveness which is defaulted in state court cannot be the basis for cause, unless the petitioner can establish cause and prejudice for the ineffectiveness claim as well. See Edwards v. Carpenter, 529 U.S. 446, 452-54, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). And as discussed in Section C below, Promotor defaulted his ineffective assistance of counsel claim and he does not offer cause-and-prejudice to excuse this default.

Promotor does not establish cause to excuse his procedural default and because he cannot establish cause, we will not address the prejudice prong. By not objecting to the allegedly inaccurate information in the Alternative Report, Promotor lost his ability to later contest it. His default is not excused. The district court was correct in reaching the same conclusion.

Even if Promotor had not procedurally defaulted his due process claim, it would fail.

Because the habeas petition in this case was filed under the AEDPA, the standard of review contained in that Act governs this appeal. Lindh v. Murphy, 521 U.S. 320, 322-23, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). When the state court has decided its case on the merits, a federal court can grant a writ of habeas corpus only if the state court's decision was contrary to clearly established Supreme Court precedent, involved an unreasonable application of such precedent, or was based on an unreasonable determination of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d). Promotor argues that this deferential standard of review should not apply to his due process claim because the Wisconsin Court of Appeals did not directly address the merits of the claim in finding that it was procedurally barred. However, in discussing the merits of Promoter's ineffective assistance of counsel claim, the court did make factual findings that are vital to the due process claim, and we will employ the deferential standard of review that the AEDPA prescribes in evaluating these findings.

Promoter contends that his due process rights were violated because he was sentenced based on inaccurate information. He argues that a defendant has a constitutional due process right to be sentenced based on accurate information. He is correct. See, e.g., Ben-Yisrayl v. Buss, 540 F.3d 542, 554 (7th Cir. 2008) (citing Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) and United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) for "the general proposition that a criminal defendant has the due process right to be sentenced on the basis of accurate information."). But not all inaccuracies deprive a defendant of due process; the incorrect information must be "materially untrue". Townsend, 334 U.S. at 741, 68 S.Ct. 1252. And a defendant who requests resentencing must establish that the sentencing court also relied on the critical inaccurate information when announcing its sentence. Simonson v. Hepp, 549 F.3d 1101, 1107 (7th Cir. 2008). A sentencing court demonstrates actual reliance on misinformation when "the court gives explicit attention to it, founds its sentence at least in part on it, or gives specific consideration to the misinformation before imposing sentence." Lechner v. Frank, 341 F.3d 635, 639 (7th Cir. 2003) (quotations omitted).

If the "23 beers" figure in the Alternative Report was materially incorrect and the sentencing court relied on it in sentencing, Promotor would be entitled to a resentencing hearing. However, Promotor's case does not meet this standard because, as the Wisconsin Court of Appeals noted, the trial court did not rely on the figure. The court found that "[b]ased on the [trial] court's comments at sentencing and in response to [Promoter's post-conviction] motion, we are satisfied that the sentence would have been the same even if the court had originally been given a lower figure for the number of beers Promotor consumed."

We do not think it was unreasonable for the Wisconsin Court of Appeals to conclude that the trial court did not rely on the figure. It is true that the judge mentioned the 23-beer figure twice during sentencing. However, these mentions came but twice over the course of 26 pages of sentencing hearing transcript, in which the court thoroughly explained its considerations in determining Promoter's sentence: his decision to drink irresponsibly in spite of prior "warning signs", the erratic and dangerous way in which he drove, his seriously impaired condition that caused him to forget significant portions of the evening, and the tragic result of his actions. And the court did state that it did not rely on the figure in its order denying Promotor's motion for post-conviction relief, which, although not dispositive, see, e.g., United States v. Montoya, 891 F.2d 1273, 1280-81 (7th Cir. 1989), also supports the conclusion of the appellate court.

Even if Promotor had not procedurally defaulted his claim of inaccuracy, the Wisconsin Court of Appeals' finding that the trial court did not rely on the information was not unreasonable. The district court properly denied his request for a writ of habeas corpus.

Before a habeas petitioner may appeal to this court, the district court must consider whether to grant the petitioner a Certificate of Appealability ("COA"). 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b). The district court may issue a COA only if the applicant has made a substantial showing of the denial of a constitutional right. Arredondo v. Huibregtse, 542 F.3d 1155, 1165 (7th Cir. 2008). Promotor requested a COA on his ineffective assistance of counsel claims, which was denied. He asks that we expand the COA to address these claims.

The district court denied Promoter's COA because it found that he defaulted this claim by failing to fully and fairly present it to the Wisconsin Supreme Court. Indeed, Promotor failed to make any specific argument on the topic, and instead simply attached the Wisconsin Court of Appeals' decision discussing ineffective assistance of counsel. The district court could have resurrected Promoter's procedurally defaulted claim if it found cause and prejudice. But the court did not so find, and held that "Promotor does not establish that application of the procedural default exception is warranted and this court's finding of procedural default is not reasonably debatable." Promotor v. Pollard, No. 07-CV-363, 2009 WL 1373935, at *4 (E.D.Wis. May 15, 2009).

We agree with the district court. To obtain federal habeas review, a state prisoner must first submit his claims through state review. Johnson v. Hulett, 574 F.3d 428, 431 (7th Cir. 2009). To satisfy this requirement, Promotor must have fairly presented the substance of his claims to the state courts by articulating both the operative facts and applicable law that entitles him to relief. Id. Appending a prior court's decision without developing an independent position does not allow meaningful review of the substance of the claims. Promoter's decision to even attempt this strategy is puzzling since at the state appellate level he lost his ineffective assistance of counsel claim on the merits. And because Promotor was not proceeding pro se, this decision is inexcusable.

We decline to expand Promoter's COA.

The decision of the district court is AFFIRMED.