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Rogelio Promotor v. Pollard, 7th Cir No. 09-2292, 12/14/10

7th circuit decision, habeas review of summary order of Wisconsin court of appeals, No. 2004AP2242-CR

Habeas – Procedural Bar, Sentencing Objection

Pomotor’s failure to object to information (the number of beers he allegedly consumed) in his alternative presentence report, worked a procedural default to his susbequent challenge to the sentencing court’s reliance on that information

Promotor accurately argues that a procedural defaultdoes 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 musthave 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 notfirmly established in Wisconsin in  2003, Promotor offers State v. Groth, which states: “Whether, given the paramount importance of the integrity of the sentencingprocess, waiver may  be invoked to preclude a defendant’s challenge  to  a sentencing based on inaccurateinformation remains unclear; the  cases the parties  citesimply do not say.” 258 Wis.2d 889, 655 N.W.2d 163, 172(Wis. Ct. App. 2002) (internal citations and quotationsomitted),  abrogated on other  grounds by State v. Tiepelman,291 Wis.2d 179, 717 N.W.2d  1 (2006). …

The court distinguishes Groth in that the claimed misinformation there was advanced by the prosecutor; here, it was by the defense.”The most important aspect of  Groth, though, is  that the court  decided  that the interests of justice required excusing the waiver.”

As a general rule, Wisconsin courts find waiver if information is not objected to at the trial court. … 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.

Habeas – Procedural Bar – Cause and Prejudice

Procedural default may be overcome by showing “cause and prejudice.” The court rejects Promotor’s claim that his not being literate in English establishes the necessary “cause.” (“But we have found that circumstances such as youth and lack of education—which similarly impede communication—do not constitute cause. Dellinger 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).”) “Cause” requires an “external impediment,” such as ineffective assistance of counsel, and in view of the fact that Promotor was given “ample opportunity to express any disapproval,” given the presence of an interpreter and the ability to confer privately with counsel throughout the proceeding, failure to object is attributed to “an internal decision, not an external impediment.” (Ineffective assistance isn’t available as a defense to the default, because he has also procedurally defaulted on the IAC claim.)

Moreover, even if the court were to ignore the default and reach the merits, Promotor wouldn’t be entitled to relief. A defendant has a due process to be sentenced on the basis of accurate information, but to violate due process the misinformation must have been relied on by the sentencing judge. The state appellate court’s finding that the sentencing judge didn’t rely on the challenged information isn’t unreasonable.

Finally, the court concludes that Promotor separately defaulted his ineffective-assistance claim by failing to present it fully and fairly to the state supreme court as part of the appellate process:

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. Promotor’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.

Probably a lesson in there.

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