y Gretchen Schuldt
A federal appeals court hammered the Wisconsin court system last week in a ruling that may finally provide a hearing to a man who has waited in vain for more than four years to get his appeal considered by a state court.
Marvin Carter, the federal court said, can pursue his habeas corpus petition in federal court.
"Though we recognize that state court remedies exist in theory in Wisconsin and should be available, the last four years have demonstrated that those remedies are, at least for Carter, inaccessible," U.S. Circuit Judge Michael Y. Scudder Jr. wrote.
Carter "has weathered a ten-month transcript delay, three different public defenders, and 14 extension requests by counsel and the trial court itself," Scudder wrote. "At no point during these four years has a single court in Wisconsin ruled on the merits of Carter’s colorable challenge to his sentence. None of this is Carter’s fault."
"Carter contends that state court remedies in Wisconsin are ineffective to protect his rights. We agree, for the facts in this case afford no other reasonable conclusion....The length of the delay should have sounded an alarm bell within the Wisconsin courts, the public defender’s office, and even the Attorney General’s office," Scudder said.
Carter's experience in the state court system has been "extreme and tragic," Scudder wrote for the Seventh Circuit Court of Appeals panel. Circuit Judge Michael B. Brennan joined the opinion and Circuit Judge Frank H. Easterbrook concurred, saying the decision did not go far enough in some areas of analysis.
Carter's odyssey began in 2016, when he was charged in Milwaukee County Circuit Court with possessing heroin, cocaine, and other drugs with intent to deliver and with felon in possession of a firearm.
He reached a plea agreement in the middle of trial, agreeing to plead guilty to the heroin and gun charges. The district attorney's office agreed to recommend a six-year sentence.
When sentencing time rolled around, though, Assistant District Attorney Laura Crivello (now a Milwaukee County circuit judge) retreated from the deal.
She told the court: “In hindsight, I so wish we would have allowed this to proceed through to the end of the trial and let the jury make their verdict because then I would have had four counts on the table today.”
Circuit Judge Janet Protasiewicz, instead of honoring the plea agreement, sentenced Carter to nine years, three more than agreed upon.
It was 2017 by then. Carter tried to appeal, arguing that Crivello breached the plea agreement and that Protasaiewicz sentenced him based on inaccurate information, both violations of his 14th Amendment due process rights.
Things went wrong almost from the beginning.
Carter filed a notice of his intent to seek postconviction relief with the trial court well within the 20-day time limit. The state public defender's office assigned him a lawyer.
"But stagnation soon followed," Scudder said. "The clerk and court reporter took 10 months to locate and share the trial transcripts that Carter’s counsel requested – a step that should have been completed within 60 days."
Carter's lawyer, on the day the postconviction motion was due, asked for more time.
"He explained that his heavy caseload prevented him from meeting with Carter or reviewing the case materials," Scudder said. The lawyer, Leon Todd, also asked for a retroactive extension of time to request certain transcripts. The state Court of Appeals granted both. (Full disclosure: Todd is a WJI Board member.)
"With the benefit of hindsight, we now know that the delay for Carter was just beginning. Carter’s counsel followed his first request to extend the deadline to file the postconviction motion with a second. And a third. And a fourth," Scudder wrote. "This pattern continued for months, with Carter’s counsel filing a new extension request on each day the prior request was due to expire. By late 2019 – more than two years after Carter’s July 2017 conviction and sentence – counsel had filed seven requests to extend the motion deadline. The Wisconsin Court of Appeals granted each motion in rote fashion."
"Wisconsin’s courts need to fix the systemic deficiency that has resulted in how Carter’s case has been treated, and become more transparent about how discretion is exercised, for the benefit of the parties, their counsel, other courts, and the public," – Seventh Circuit Court of Appeals
Carter turned to federal court and filed a habeas corpus motion, a type of motion alleging that a person's incarceration violates the Constitution.
Another year passed before U.S. District Judge James D. Peterson issued a decision denying Carter's request. In it, Peterson recognized Carter's difficult position.
"The delay in Carter’s postconviction or appellate process is inordinate. It has been more than three years after his judgment of conviction, and his case has gone nowhere," Peterson wrote.
Peterson told Carter to give the state courts one more chance, questioning whether the courts knew Carter "disapproves" of Todd's repeated requests for more time.
"By our tally, then," Scudder wrote, "Carter’s counsel filed twelve consecutive extension requests, collectively pushing the deadline to file the motion to Nov. 24, 2020. And, as best we can tell, not once has the Wisconsin Court of Appeals – or any other Wisconsin court for that matter—recognized that Carter’s case has been stalled for over four years."
The U.S. Senate last month confirmed President Trump's nomination of Brett H. Ludwig as a judge for the U.S. District Court for the Eastern District of Wisconsin, based in Milwaukee. The information below is taken from Ludwig's own submission to the Senate Judiciary Committee. This profile is similar to those WJI compiles for state judges in our "Evers' judges" and "Walkers' judges" series.
Name: Brett H. Ludgwig
Appointed to: U.S. District Court Eastern District of Wisconsin
Confirmation date: Sept. 9, 2020. (Lifetime appointment)
Law School – University of Minnesota Law School
Undergraduate – University of Wisconsin – Stevens Point
Recent legal employment:
2017-present – U.S. bankruptcy judge for the Eastern District of Wisconsin
1994; 1995-2017 – Associate and partner for Foley & Larner law firm, Milwaukee
2016-2017 – Adjunct professor, Marquette University Law School
Bar and court admissions:
Wisconsin State Bar, admitted 1994
Minnesota State Bar, 1998; gave up membership when he became a bankruptcy judge in 2017
United States Court of Appeals for the Seventh Circuit, 2014
United States Court of Appeals for the Eighth Circuit, 1995
United States District Court for the Eastern District of Wisconsin, 1995
United States District Court for the Western District of Wisconsin, 2012
Professional, business, fraternal, scholarly, civic charitable or other organizations belonged to since law school graduation: None
Elsewhere Ludwig said he was on the board of the Mequon Thiensville Education Foundation from 2014-2017 and served as vice president in 2016-2017. He also served on the Board of the Fox Point Foundation from 2002-2006 and as Board president in 2006-2006.
Military service: None
Approximate number of cases provided over that have gone to verdict or judgment: As of February 1, 2020, I have presided over more than 11,900 bankruptcy cases and adversary proceedings.
10 most significant cases:
In re Mendiola – This case involved a debtor who was a serial bankruptcy filer. He had filed five previous cases in the preceding five years, all of which were dismissed after he failed to comply with his obligations imposed by the Bankruptcy Code. In this latest case, the Chapter 13 Trustee and the debtor's mortgage creditor, U.S. Bank N.A., requested extraordinary relief to prevent further abuses of the bankruptcy system. The trustee asked the court to dismiss the case and bar the debtor from refiling for 180 days. The bank requested in rem relief from the automatic stay...to avoid having the automatic stay go into effect with respect to the mortgage property if the debtor filed yet another case. After an evidentiary hearing, I granted both motions.
In re Poivey – This Chapter 7 case involved several disputes over the treatment in bankruptcy of a debtor-wife's inheritance of mineral rights under oil and gas leases in Texas. The case involved two evidentiary hearings concerning whether the inherited mineral rights were excluded from the debtor's bankruptcy estate...and whether royalty payments from those mineral rights could be exempted by the debtor-wife's husband. I resolved the first issue in favor of the trustee and the second in favor of the debtors. The case ended with a discharge.
In re Bailey-Pfeiffer – This was a Chapter 13 case involving a recently divorced woman with several children and more than $870,000 in unsecured student loan debts, which she
wanted to repay through a Chapter 13 repayment plan. Section 109(e) of the Bankruptcy Code provides that only an individual with noncontingent, liquidated, unsecured debts of less than $394,725 can be a debtor under Chapter 13. Based on the plain terms of the statute, I ordered that the debtor must either convert the case to a chapter for which she was eligible or the case would be dismissed.
In re. Timothy Brennan – In this Chapter 11 case, a business owner sought bankruptcy protection to prevent the forced foreclosure sale of his former metal fabricating facility. After several contested hearings, I resolved a dispute over the valuation of the building and the debtor was able to confirm a Chapter 11 plan providing for the orderly sale of the real estate. The plan was ultimately confirmed, the real estate sold for $3.2 million, the secured creditor repaid, and the case closed.
In re. Bagg – This was a Chapter 7 case in which a creditor, who had been a neighbor of the
debtors, filed an adversary proceeding against them, seeking to have a debt arising from a state court tortious interference with contract judgment declared nondischargeable.... After a trial, I concluded that the creditor had not proved that the debt arose from a willful and malicious injury and thus ruled the debt was dischargeable.
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