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Morales v. Wright

September 3, 2009

MARLO U. MORALES, PETITIONER-APPELLANT,
v.
ANABOAT WRIGHT, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 06 C 600-Lynn Adelman, Judge.

The opinion of the court was delivered by: Tinder, Circuit Judge.

ARGUED JANUARY 8, 2009

Before EASTERBROOK, Chief Judge, and EVANS and TINDER, Circuit Judges.

Marlo Morales pleaded guilty in Wisconsin to two counts of first degree sexual assault of a child. After receiving an unexpectedly long sentence, he sought multiple reviews of his conviction in the Wisconsin state courts; after losing there, he sought a federal writ of habeas corpus. The district court denied his petition. We affirm.

I. Background

Marlo Morales was charged with two counts of first degree sexual assault of a child. He gave a statement to the police in which he admitted knowing the victim was eleven years old when he had sex with her, but that he could not control his urges because she was always teasing him. According to his confession, he had sex with the victim on at least five occasions beginning in the fall of 1999. His account, and that of the victim, was corroborated by a sexual assault nurse at a hospital. The nurse determined that the victim had recently had inter-course and was infected with a sexually transmitted disease. The victim told police that she had not had sexual intercourse with any other partners in her life. She was not yet thirteen at the time. Later, prosecutors informed the court that the victim had been assaulted at another time by another man.

In June 2000, Morales entered an Alford plea to two counts of first degree sexual assault of a child and was sentenced to concurrent prison terms of forty and sixty years (twenty of which were extended supervision). See North Carolina v. Alford, 400 U.S. 25 (1970). Because the sixty-year sentence was issued pursuant to Wisconsin's truth-in-sentencing law, Morales is not eligible for parole or good behavior credits, a circumstance he claims not to have known when entering into the plea agreement. In July 2001, Morales sought post-conviction relief from the trial court and raised a variety of ineffective assistance claims, including two of the claims before us: that his trial counsel improperly understood the Wisconsin rape shield law (which would have allowed him to impeach his victim's testimony) and that the trial court failed to ensure that he understood the consequences of his guilty plea. He lost on August 2, 2001, and appealed. The Wisconsin Court of Appeals affirmed the trial court, adopting the "no-merit" report of his appellate counsel. Morales had filed a pro se response to the no-merit report, raising several new claims. The state supreme court denied review of his conviction on January 23, 2004.

Morales then attacked his conviction collaterally, under WIS. STAT. § 974.06, arguing that his appellate counsel was ineffective for failing to attack the effectiveness of his trial counsel. At this point, he raised the second ineffectiveness claim we have here regarding his trial counsel's failure to inform him of the sentencing consequences of his Alford plea. His collateral attack failed in the Wisconsin circuit court and court of appeals on the merits and because he failed to raise the claim in his response to his appellate counsel's no-merit brief. His petition for review of his § 974.06 motion was denied by the Wisconsin Supreme Court.

Proceeding onward, Morales filed a habeas petition in the Wisconsin Court of Appeals, challenging the effectiveness of his appellate counsel for his failure to raise the claim that his trial counsel was ineffective for not ensuring Morales understood all the elements of the crime. His petition was dismissed for a number of reasons discussed infra.

On May 16, 2006, Morales filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Wisconsin, and presented the issues we have before us in various forms. The state moved to dismiss, arguing that the petition was untimely and that Morales had procedurally defaulted on all of his claims. The district court found the petition timely and that Morales had not defaulted on the claims that we have here. But the district court denied the petition on the merits.

Morales requested a certificate of appealability, which the district court denied. We granted a certificate of appealability, finding that Morales "made a substantial showing of the denial of a constitutional right as to whether his trial counsel rendered constitutionally sufficient assistance and whether his guilty plea was knowing and voluntary."

II. Analysis

A. Standard of Review

We review a district court's decision to deny habeas relief de novo. Daniels v. Knight, 476 F.3d 426, 433 (7th Cir. 2007). Our review of petitioner's claims is constrained by the rules of the Antiterrorism and Effective Death Penalty Act, particularly 28 U.S.C. §§ 2244 & 2254, as outlined below. Wisconsin contests Morales's petition on a number of procedural grounds, also discussed below, as well as on the merits, which we find we must reach.

B. Timeliness

Morales had one year after his conviction became final in Wisconsin state court to bring a federal habeas petition. 28 U.S.C. ยง 2244(d)(1)(A). This limitation period is tolled while petitions for relief in state court are pending, as ...


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