Defendant wins a habeas hearing; Seventh Circuit blasts state courts, attorney general's office

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."

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"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 motion was filed on Nov. 24. Carter is still waiting for a decision from the trial court. The Court of Appeals has issued three extension of time – one of them was not even requested – for the trial judge to issue ruling, Scudder said.

Todd, now executive director of the Milwaukee Fire and Police Commission, withdrew from the case, as did Carter's next lawyer. There is nothing to indicate Carter is at fault for those changes, Scudder said.  

Another round in state court is futile for Carter, the appeals panel said. 

"We were shocked anew by the state’s presentation at oral argument. When asked whether the attorney general had filed anything with the Wisconsin Supreme Court alerting it to the serious problems in the lower courts, counsel insisted, 'We don’t have a problem.' That view is indefensible: a miscarriage of justice occurs when a convicted prisoner must wait four years for appellate review."​  – Seventh Circuit Court of Appeals

"There is no indication that Wisconsin will take up his postconviction motion at any time in the foreseeable future," Scudder said. "What all of this means is that Carter has no more remedies to exhaust, so whatever lack-of-exhaustion defect the district court recognized is functionally impossible to repair.... By directing Carter to return to state court for one last try, the district court invited Carter to attempt a feat guaranteed to fail."

The appeals court did not spare any of the players, except for Carter, from harsh criticism.

"What makes all of this so tragic is that the state itself is responsible for the delays," Scudder wrote. "The clerk’s office failed to transmit the necessary record documents for ten months.  Carter’s (first) public defender filed, and the Wisconsin Court of Appeals granted, twelve extension requests. The trial court itself filed two extension requests, and the Wisconsin Court of Appeals added a third extension of time, too....The record does not show any court rules or internal operating procedures from which it can be determined who decides these requests – does a single judge hear the motion, or a motions panel of judges? Is it court administrators or lower-level court employees?"

Reform is needed, the panel said.

"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," Scudder wrote.

He also had had harsh words for the Attorney General Josh Kaul's office.

"We were alarmed to see the state point its finger at Carter and, in its briefing, go so far as to say that he is at fault because he 'complained to no one about the delays until after he came into federal court.' It is not clear to us what else Marvin Carter could have done or, for that matter, why the state is so intent on avoiding responsibility for its own failings." Scudder said. "And we were shocked anew by the state’s presentation at oral argument. When asked whether the attorney general had filed anything with the Wisconsin Supreme Court alerting it to the serious problems in the lower courts, counsel insisted, 'We don’t have a problem.' That view is indefensible: a miscarriage of justice occurs when a convicted prisoner must wait four years for appellate review."​ 

Scudder noted, too, that ifthe trial court had adopted the sentence agreed to in the plea deal, Carter would be released  in six months, on Feb. 10, 2022. ​