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Wisham v. Bertsch

United States District Court, D. North Dakota

November 15, 2018

Derek Matthew Wisham, Petitioner,
Leann Bertsch, Director of the North Dakota Department of Corrections and and Rehabilitation; et. al., Respondents.


          Charles S. Miller, Jr., Magistrate Judge United States District Court.

         Before the court is a Motion to Dismiss filed by respondents on February 8, 2018. Also before the court are motions to amend the petition for habeas corpus relief and for an evidentiary hearing filed by the petitioner, Derek Matthew Wisham (“Wisham”) on March 12, 2018. For the reasons set forth below, respondents' motion is granted, Wisham's motions are deemed moot, and the above-entitled action is dismissed with prejudice.

         I. BACKGROUND

         A. Underlying State Conviction

         The chronology of events culminating in Wisham's conviction in state district court was summarized as follows in a brief filed by Wisham with the North Dakota Supreme Court.

[¶2] Petitioner and Appellant Derek Matthew Wisham (Wisham) was charged in Morton County case 30-2014-CR-00718 with the offenses of Gross Sexual Imposition, a class AA Felony and Assault, a Class A Misdemeanor, alleged to have occurred on or about June 8, 2014. On December 18, 2014, Wisham entered a guilty plea to an amended charge of Sexual Imposition, a class B Felony and Assault, a Class A Misdemeanor. A presentence investigation was ordered and a sentencing hearing was scheduled. At his sentencing hearing on April 13, 2015, Wisham orally moved to withdraw his guilty plea and the District Court denied that oral motion, finding that Wisham had not supplied any sufficient reason to withdraw his plea. New counsel was appointed to Wisham and Wisham orally moved to withdraw his guilty plea at his rescheduled sentencing hearing on May 19, 2015. Upon request of the District Court, Wisham filed a formal written Motion to Withdraw Guilty Plea. For reasons argued in Wisham's written motion, the District Court granted his Motion to Withdraw Guilty Plea on July 23, 2015, finding that there may have been an issue with ineffective assistance of counsel and that there was a concern that Wisham did not make a knowing plea. The State amended the Information to reflect the original charges and the matter was rescheduled for trial.
[¶3] On August 20, 2015, counsel for Wisham moved to withdraw from his representation and the District Court granted that motion on August 26, 2015. New counsel was reassigned and the matter was again set for jury trial. On December 22, 2015, Wisham again entered a guilty plea, to the reduced charge as before. On the Sexual Imposition charge, Wisham was sentenced to a term of 10 years in prison with 6 years suspended. On the Assault charge, Wisham was sentenced to a term of 1 year in prison, concurrent with the Sexual Imposition charge. Wisham was given credit for 17 months and 18 days for the extended time that he spent in custody awaiting disposition of his case.

(Doc. No. 15-24 (Wisham II Appellant's Brief).

         B. First Application for Postconviction Relief

         On August 9, 2016, Wisham filed an application for postconviction relief in state district court, claiming that his victim had perjured herself multiple times, that his conviction was obtained through coercion and in violation of his Fifth Amendment right against self-incrimination, breach of contract, that he was denied an opportunity to conduct his own investigation, that the State's sex offender registration requirement as applied to him is unconstitutional, and that he was denied effective assistance of counsel. (Doc. No. 15-6).

         The state district court convened a hearing on the application. (Doc. No. 15-8). Thereafter, on April 20, 2017, it issued an order denying the application. (Doc. No. 15-9). Its decision was affirmed on appeal by the North Dakota Supreme Court. Wisham v. State, 2017 ND 235, 903 N.W.2d 60 (per curiam).

         C. Second Application for Postconviction Relief

         On March 24, 2017, Wisham filed a second application for postconviction relief in state district court. (Doc. No. 15-11). In addition to again challenging the constitutionality of State's sex offender registration requirement as applied to him, he complained that the State had miscalculated his good time. (Id.). On April 21, 2017, the state district court summarily denied the application without a hearing on motion by the State. (Doc. No. 15-13). Its decision was affirmed on appeal. Wisham v. State, 2017 ND 236, 903 N.W.2d 60.

         D. Third Application for Post Conviction Relief

         On June 26, 2017, Wisham filed a third application for post conviction in state district court, this time claiming that he had been denied parole in breach of his “plea deal” and further requesting that a change in State law regarding good time that post-dated his conviction be retroactively applied. (Doc. No. 15-15). The state district court denied the application on October 27, 2017, opining that the decision to grant or deny parole was not a valid ground for postconviction relief and it had already addressed the issue of good time when disposing of his previous application. (Doc. No. 15-17). Wisham did not appeal.

         E. Petition for Writ of Habeas Corpus pursuant to § 2254

         On December 12, 2017, Wisham initiated the above-entitled action pro se by filing a petition for a writ of habeas corpus with this court pursuant to 28 U.S.C. § 2254. He asserts the following grounds for relief:

Ground One: Perjury or lying or making false statements under oath by the accuser. Manufacturing of evidence.
Ground Two: Conviction obtained by the use of coercion/denial of effective assistance of counsel.
Ground Three: Conviction obtained by a violation of my privilege against self-incrimination.
Ground Four: Breach of contract because case was not re-opened. Or violation of plea deal.
Ground Five: Denial of right to find witnesses in my favor.
Ground Six: Registration is unconstitutional.
Ground Seven: Denial of effective assistance of counsel.
Ground Eight: Failure to credit me for goodtime for all of my sentence imposed as the law reads.
Ground Nine: Breach of contact or violation of plea deal.
Ground Ten: Taking my 2nd Amendment right away is a violation of my plea deal (Alford) and unconstitutional.

(Doc. No. 1).

         On February 8, 2018, respondents filed a response to Wisham's habeas petition. They also filed a motion to dismiss.

         On March 12, 2018, Wisham filed a motion to amend his petition to clarify that he seeks the following:

The dismissal with prejudice of all of the following: all of my sentence, all of my collateral consequences, all of my probation, and all of my registration is found to be unconstitutional. And that Constitutional rights be found to be unable to be given away or forfeited in plea bargains because of coercion or unable to be taken away at all because a right is something that cannot be taken away or it would just be privilege. And any other relief to which I me be entitled to.

(Doc. No. 18). He also filed a request for an evidentiary hearing along with his response to the respondents' motion. (Doc. Nos. 19 and 20).


         A. Scope of Review

         Under 28 U.S.C. § 2254, a federal court may review state-court criminal proceedings to determine whether a person is being held in custody in violation of the United States Constitution or other federal law. However, where the state court has adjudicated the federal claim on the merits, this court's review is limited by 28 U.S.C. § 2254(d) to a determination of whether the state court's decision is (1) directly contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or (2) based on an unreasonable determination of the facts based on the evidence presented in the state-court proceeding. See 28 U.S.C. § 2254(d); see generally Harrington v. Richter, 562 U.S. 86, 97-100 (2011) (“Richter”); Williams v. Taylor, 529 U.S. 362, 399-413 (2000). This highly deferential standard of review is often referred to as “AEDPA deference” because it was enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). E.g., Pederson v. Fabian, 491 F.3d 816, 824-25 (8th Cir. 2007); see generally Renico v. Lett, 559 U.S. 766, 773 n.1 (2010). The reasons for the limited review are ones of federalism and comity that arise as a consequence of the state courts having primary responsibility for ensuring compliance with federal law in state criminal proceedings. See, e.g., Richter, 562 U.S. at 103.

         B. Exhaustion Requirements

         The exhaustion doctrine codified at 28 U.S.C. § 2254(b)-(c) precludes granting habeas relief for claims that have not been properly exhausted in the state courts. E.g., Rhines v. Weber, 544 U.S. 269, 274 (2005); Dixon v. Dormire, 263 F.3d 774, 777 (8th Cir. 2001). Proper exhaustion has two components. First, the claim must be “fairly presented, ” which requires that the petitioner present both the factual and legal premises for the claim, with the latter being satisfied if there is a reference to the particular federal constitutional right or a citation to a state or federal case that raises the constitutional issue. Dansby v. Norris, 682 F.3d 711, 722-23 (8th Cir. 2012), vacated on other grounds, Dansby v. Hobbs, No. 12-8582, 2013 WL 506561 (U.S. June 3, 2013); Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir. 2007). Second, the petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

         In addition, there are three other aspects of the exhaustion doctrine that are important. The first is that the exhaustion doctrine is satisfied if there are no state-court remedies available and exhaustion would be futile, such as when the claim has been procedurally defaulted at the state-court level. E.g., Armstrong v. Iowa, 418 F.3d 924, 926-27 (8th Cir. 2005). The second is that Rose v. Lundy, 455 U.S. 509 (1982), prohibits a petitioner from proceeding with a “mixed petition” of exhausted and unexhausted claims. See a l s o Rhines v. Weber, 544 U.S. at 273-74. The third is that § 2254(b)(2) authorizes the court to deny a claim on the merits notwithstanding a failure to exhaust. E.g., Gringas v. Weber, 543 F.3d 1001, 1003 (8th Cir. 2008)

         C. Procedural Default

         A federal district court is precluded from substantively considering a habeas claim that has been procedurally defaulted at the state level on independent and adequate state grounds. E.g., Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). State procedural grounds are independent and adequate if they are firmly established, readily ascertainable, and regularly followed. Barnett v. Roper, 541 F.3d 804, 808 (8th Cir. 2008); Franklin v. Luebbers, 494 F.3d 744, 750 (8th Cir. 2007). They must also further a legitimate state interest and not be applied in an exorbitant manner. Barnett, 541 F.3d at 808. The rule barring procedurally-defaulted claims is nearly absolute. Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007). The only exceptions are the rare instances ...

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