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Yeoman v. Pollard

United States Court of Appeals, Seventh Circuit

November 16, 2017

Adam Yeoman, Petitioner-Appellant,
v.
William Pollard, Respondent-Appellee.

          Argued September 6, 2017

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:14-cv-00225-WED - William E. Duff in, Magistrate Judge.

          Before WOOD, Chief Judge, and ROVNER and Sykes, Circuit Judges.

          ROVNER, Circuit Judge.

         Adam Yeoman is serving a lengthy sentence in a Wisconsin prison after entering a plea of "no contest" to a charge of attempted first degree intentional homicide. Before filing his federal petition for habeas corpus relief, he exhausted some but not all of his claims in the Wisconsin courts. In presenting his mixed petition to the district court, [1] Yeoman requested that the court enter a stay and hold his petition in abeyance so that he could return to state court and exhaust his remedies there. The court declined to enter the stay after concluding that Yeoman lacked good cause for the request. The court then dismissed the petition with prejudice, and Yeoman appeals. We affirm.

         I.

         At approximately 2 a.m. on January 4, 2008, Yeoman approached a bartender and the owner of the Log Cabin Tavern as they walked through the parking lot of the Bangor, Wisconsin bar. Yeoman pointed a handgun at the pair and ordered them to the ground. Instead, they resisted. The bar owner, armed with the evening's receipts, hit Yeoman in the face with the money bag he was carrying and wrestled him for control of the gun. Yeoman repeatedly try to fire the malfunctioning gun. During the struggle, the bartender twice heard the gun click but it did not fire.[2] At one point, the bar owner directed the bartender to get into her vehicle and run over Yeoman, an action she was unable to take before Yeoman fled the scene empty-handed in a car driven by his sister. He was apprehended minutes later. Yeoman eventually entered a plea of "no contest" to one count of "attempt first degree intentional homicide, repeater, use of a dangerous weapon" in the Circuit Court of LaCrosse County, Wisconsin. R. 35-7, at 20-29. Other charges against him were dismissed, although his plea agreement specified that the remaining charges would be "read-in" for the purposes of sentencing. The other charges included a second count of attempted first degree intentional homicide, attempted armed robbery with threat of force, possession of a firearm by a felon, obstructing an officer, and possession of drug paraphernalia. Yeoman signed a plea questionnaire and waiver of rights that listed his maximum penalty as sixty years' imprisonment. The court sentenced Yeoman to twenty-five years in prison and twenty years of extended supervision.

         Yeoman's trial counsel filed a direct appeal for him, raising three evidentiary issues. Counsel argued that law enforcement lacked reasonable suspicion to stop Yeoman's car, that the officers failed to honor Yeoman's invocation of his right to remain silent, and that the searches of his car and his person were unreasonable. The Wisconsin Court of Appeals denied the appeal. Yeoman's attorney told him that he did not intend to file a petition in the Wisconsin Supreme Court, and no petition was filed in that court.

         Yeoman then filed a pro se petition for a writ of habeas corpus in the Wisconsin Court of Appeals. He asserted that counsel on direct appeal had been ineffective for failing to file a no-merit petition for review under Wis.Stat. § 809.32(4) in the Wisconsin Supreme Court. The Court of Appeals denied the habeas petition because the no-merit petition process applies only to persons with counsel appointed by the State Public Defender, and Yeoman had privately retained counsel. Yeoman then moved for reconsideration, arguing that: (1) he did not knowingly waive his rights to a meaningful direct appeal; (2) the court's interpretation of the no-merit petition as applying only to indigent defendants with appointed counsel violated equal protection; and (3) he was entitled to equitable relief because his lawyer failed to follow through on an agreement to file a petition for review in the Wisconsin Supreme Court. After the Wisconsin Court of Appeals summarily rejected that pro se motion, Yeoman filed a second motion for reconsideration, this time arguing that his appellate counsel, who also served as trial counsel, was ineffective because the issues that counsel raised on direct appeal were either frivolous or inadequately argued. Yeoman asserted that counsel should have instead raised three other issues, namely that: (1) trial counsel labored under an actual conflict of interest with his client; (2) Yeoman did not knowingly and intelligently enter his no-contest plea; and (3) trial counsel was ineffective for failing to inform Yeoman of any possible defenses[3] prior to entering the plea, and failing to inform him of various sentencing issues. The Wisconsin Court of Appeals summarily denied the second pro se motion for reconsideration as well. The Wisconsin Supreme Court then denied his pro se petition for review.

         At that point, Yeoman filed a pro se petition for a writ of habeas corpus in federal court claiming that (1) counsel was ineffective on direct appeal when he failed to file a petition for review with the Wisconsin Supreme Court without obtaining a waiver from Yeoman of his right to do so; (2) Yeoman was deprived of a meaningful direct appeal when counsel failed to file a petition for review with the state supreme court because that failure deprived Yeoman of an additional level of review and prevented him from being able to seek federal habeas review of the issues raised in the direct appeal; and (3) as applied to him, section 809.32(4) violates Yeoman's right to equal protection. In the instant appeal, Yeoman refers to these as his exhausted claims. In the petition's request for relief, Yeoman asked that the district court reinstate his direct appeal rights in state court.

         A little more than two weeks after filing the first petition, Yeoman filed a second federal habeas petition (docketed under a second case number), which asserted three claims: (1) his plea was unknowing because (a) he was not informed of possible defenses to the attempted homicide counts, (b) he was unaware that the dismissed charges could be used against him at sentencing, and (c) he was unaware that sentencing enhancers were dismissed only as to the count to which he pled and not as to the counts that were read in; (2) trial counsel was ineffective (a) for not informing him of possible defenses, (b) for not objecting to the prosecutor's purported breach of the plea agreement, and (c) for not properly raising suppression issues; and (3) post-conviction counsel was ineffective for not raising the first two grounds in the second habeas petition on direct appeal. In the instant appeal, Yeoman refers to these as his unexhausted claims. Yeoman explained in his second habeas petition that he did not exhaust his state court remedies on these three claims because, "The petitioner is waiting to see if his direct appeal rights will be reinstated before filing a collateral appeal in state court." R. 1, at 8-9. For relief in the second petition, Yeoman requested that the district court enter an order allowing him to withdraw his plea. R. 1, at 12.

         On the same day that he filed his second federal petition, Yeoman also filed a "Motion to Stay Petition and Hold in Abeyance." R. 2. In the motion, Yeoman explained that he was aware that he could file a motion for post-conviction relief in state court asserting that his post-conviction lawyer was ineffective for not raising certain meritorious issues on direct appeal and for failing to adequately argue the issues that he did raise. But Yeoman asserted that this avenue for appeal presented procedural hurdles that would not be present if he could simply pursue the issues anew on direct appeal. He therefore decided that he would pursue a motion for post-conviction relief in state court only "as a last resort if his direct appeal rights are not reinstated." R. 2, at 2. Yeoman filed the second petition and concurrent motion for a stay because he was concerned that the court might deny relief in his first petition and not reinstate his direct appeal rights in state court. If that happened, he explained, he would be forced to file a collateral appeal in state court and wished to assure that he preserved his right to seek federal habeas review of any adverse ruling from the state courts on the so-called unexhausted claims. In sum, Yeoman filed the second "protective" petition:

in case he is not allowed to file a petition concerning the violation of his constitutional appellate rights and a subsequent and distinct petition challenging the constitutional basis of his plea and sentencing, so that he can amend his current petition to include the issues directly attacking his conviction.

R. 2, at 2-3. He therefore asked the court to "stay and abey" his second petition until it ruled on his first petition (and appealed that ruling, if necessary), so that he could commence state court post-conviction proceedings to ...


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