Wozny, Paul C. v. Grams, Greg ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3700
P AUL C. W OZNY,
Petitioner-Appellant,
v.
G REGORY G RAMS, Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-C-739—Rudolph T. Randa, Chief Judge.
____________
A RGUED M AY 8, 2008—D ECIDED A UGUST 21, 2008
____________
Before C OFFEY, R IPPLE, and K ANNE, Circuit Judges.
C OFFEY, Circuit Judge. On March 6, 2002, Paul Wozny
was charged with and entered a plea of no contest to
three sexual offenses involving children and was sen-
tenced to a term of 25 years’ imprisonment and 45 years’
extended supervision in a state court proceeding. After
exhausting his state remedies, Wozny petitioned the
United States District Court for the Eastern District of
Wisconsin for a writ of habeas corpus under 28 U.S.C.
2 No. 07-3700
§ 2254, arguing that his pleas should have been vacated
because they were not knowingly, voluntarily, and intelli-
gently entered. Because the district court correctly deter-
mined that the state court reasonably applied federal
law, we affirm.
Background
In September 2001, three young children (all age 12) told
detectives from the Walworth County, Wisconsin, police
department that Wozny had sexually assaulted them
on multiple occasions during camping trips. As a result,
Wozny was arrested and charged with nine sexual offenses
in Walworth county. In March 2002, Wozny pleaded no
contest to one count of having sexual contact with a person
under thirteen, one count of causing a child to expose a
sex organ, and one count of having sexual contact with a
person under age thirteen on at least three occasions.
Wozny’s plea agreement provided that seven uncharged
offenses from Jefferson county would be dismissed and
the matters barred from further prosecution provided
that the offenses were read into the court record and
considered at sentencing. Wozny entered pleas of no
contest and, as heretofore stated, was sentenced to twenty-
five years’ imprisonment. The remaining charges were read
into the record, considered by the court, and later dis-
missed.
At Wozny’s plea hearing, the court reviewed the crimes
charged and explained to him the rights he was giving up.
The judge then asked Wozny’s trial counsel whether the
charges from Jefferson county were to be read in. Counsel
No. 07-3700 3
replied, “They are to be dismissed and read-in, correct.”
The judge then asked Wozny if that was his understanding,
to which he replied, “Yes, sir.” The judge also asked the
defendant if he understood that “I am not bound by any
promises or threats anyone may have made to you?” the
defendant replied, “I understand.” The judge then read
the charges into the record and Wozny entered a plea of
no contest. Judge Gibbs then stated:
By entering your pleas, you’re giving up certain
Constitutional rights; these include your right to a
trial, the right to remain silent and understand that
your silence cannot be used against you at trial, the
right to testify and present evidence at trial, the right
to use subpoenas and require witnesses to come to
court and testify for you, the right to a jury trial where
all twelve jurors would have to agree unanimously, the
right to confront the witnesses against you and the
right to make the State prove you guilty beyond a
reasonable doubt; do you understand that you’re
giving up those rights?
To this question Wozny replied, “I do.” The judge then
asked the defendant, “Did you sign [the plea agreement]
after you read and understood everything in this form?”
Wozny answered, “Yes, sir.” The judge asked, “Do you
have any questions of me,” to which Wozny answered,
“No.” The judge then asked Mr. De La Rosa, Wozny’s
attorney, “Are you satisfied your client freely, willingly,
and voluntarily enters his plea?” Mr. De La Rosa re-
sponded, “Yes.” The judge asked, ” Will your [sic] stipulate
that the complaint sets forth a sufficient factual basis for
4 No. 07-3700
findings of guilt?” Mr. De La Rosa answered, “So stipu-
lated.” The judge then stated
On this record, I will find that the defendant freely,
willingly, and voluntarily enters his plea. I’ll find that
a factual bases [sic] exists, and I’ll adjudge the defen-
dant guilty of counts 2, 4 and 7. I’ll dismiss and read-in
the remaining counts in 01-CF-394 [state court case
number], and await a read-in list or whatever charges
were to be read-in.
To determine the exact sequence of events that took
place at the sentencing hearing of April 25, 2002, we
review the official court transcript from Wozny’s sen-
tencing hearing. During the hearing, Judge Gibbs, referring
to the crimes before him, stated “[d]ismissed and read-in
are two counts of First-Degree Sexual Assault of a Child,
four counts of Causing a Child to Expose a Sex Organ.
There were other sexual assaults which took place in
Jefferson County, and those, ah, are to be considered here
today. I think they’ve been dismissed in Jefferson County.”
He noted that Wozny had “assaulted several boys
several times.” Judge Gibbs also considered the fact
that these assaults had taken place over a two year period
and that Wozny got the children not to tell anybody by
“taking them places and buying them things.” The judge
noted that Wozny had used his position of trust as a Boy
Scout leader to “manipulate the boys and satisfy his own
desires.” The judge also noted that Wozny failed to take
responsibility for his actions following his arrest. The
judge specifically noted that Wozny had lied throughout
the entire process and that the defendant claimed that
No. 07-3700 5
the boys fabricated the story. Judge Gibbs also took
notice that this was ongoing, serial (multiple) conduct. The
judge was deeply troubled by the way Wozny had wormed
his way into the victims’ families and how he had taken
advantage of that relationship.
On February 11, 2003, nearly ten months after sen-
tencing, Wozny, represented by substitute counsel, moved
to withdraw his pleas of no contest. He then claimed,
contrary to the court record, that at the time of sentencing
he did not understand the elements of the offenses and
that his pleas were, therefore, not knowingly and volun-
tarily made. Wozny also alleged that the trial court
failed to inform him that it was not bound by the plea
agreement. Additionally, Wozny attacked the reading-in
of the remaining charges.
The trial court held a hearing on Wozny’s postconviction
motion. During that hearing, Wozny testified that his trial
counsel urged him to plead because he felt he had a
“hopeless case . . . and would go to prison for a very
long time.” According to the defendant’s version of the
plea questions, he now states that he did not read the
plea agreement before signing it and counsel never dis-
cussed the elements of the offenses with him in spite of
his statements to the contrary at the plea hearing. Wozny
also claimed ignorance of the consequences of pleading
no contest.
During cross-examination at the postconviction motion
hearing, the district attorney read from the transcript of
Wozny’s plea hearing. At that hearing the judge asked
Wozny, “Do you understand that I am not bound by any
6 No. 07-3700
promises or threats anyone may have made to you,” to
which Wozny replied, “I understand.” Wozny acknowl-
edged that he made the statement, but maintained that
he did not understand that this meant the judge was not
bound by the plea agreement. During the plea hearing the
judge also asked, “Did [counsel] explain to you all the
elements of each of these offenses . . . [and] are you satis-
fied that the state could prove those beyond a reasonable
doubt?” Wozny replied, “Yes, sir.” But during the
postconviction hearing Wozny contradicted that plea
hearing testimony, stating instead that he really had not
understood and that his lawyer instructed him to
simply agree with anything the court asked. Wozny also
acknowledged that he had not proclaimed his innocence
at sentencing and, instead, had actually apologized to
the victims. Finally, the state presented the postconviction
court with a copy of Wozny’s signed plea agreement,
which specified that Wozny had reviewed and under-
stood the entire document.
Wozny’s trial counsel also testified during the
postconviction hearing. According to counsel’s testimony,
Wozny was more intelligent and educated than the
average criminal defendant. Although counsel could not
remember whether he had read the entire plea agree-
ment to Wozny “word-for-word,” counsel remembered
conveying the substance of the agreement to him. Counsel
also stated that he discussed the elements of each offense
with Wozny and stated that Wozny had understood them.
The postconviction judge began by stating that “[t]here
was some confusion at the top about whether there was
No. 07-3700 7
going to be a read-in or whether it was going to be an
outright dismissal.” Judge Gibbs continued, stating “it’s
never even crossed my mind to punish someone for a read-
in from something on an out-of-county charge, and that
certainly wasn’t the case here.” Next, the court recounted
having advised Wozny that it was not bound by any
promises, including those set forth in the plea agreement.
The court also observed that Wozny could not “have been
blindsided” by the sentence because it was twenty years
below what the state had asked for. The court made
clear that it felt that Wozny was an intelligent man and
made note that he had negotiated downward with the
prosecutor and received the benefit by reducing the
potential sentence from 300 years to 150 years. The
state asked for a further reduction to forty-five years and
Wozny received only twenty-five years of confinement.
Additionally, the court explained that it was not neces-
sary to go in depth about the elements that Wozny pleaded
to because it had received assurances from both counsel
and the defendant that he, Wozny, understood them.
Finally, the court noted Wozny’s professed understanding
of each individual right he waived by pleading no con-
test. The court concluded that Wozny had knowingly and
voluntarily entered his pleas, and therefore denied
his motion to withdraw them. The Wisconsin Court of
Appeals also denied the postconviction motion, and the
Supreme Court of Wisconsin denied review.
Wozny next filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254, again disputing the voluntariness
of his pleas, but also claiming that his trial counsel had
rendered ineffective assistance. The district court con-
8 No. 07-3700
cluded that Wozny had procedurally defaulted his attack
on counsel. It then determined that the state courts’
decision denying collateral relief on the voluntariness of
Wozny’s pleas was not objectively unreasonable. The
district court denied his petition, but certified Wozny’s
attack on his pleas for appeal.
Analysis
Wozny, attempting to cover all bases, contends that he
did not knowingly and voluntarily plead no contest to the
criminal charges and, thus, that he was deprived of due
process. The Supreme Court has noted that a plea “oper-
ates as a waiver of important rights, and is valid only if
done voluntarily, knowingly, and intelligently, ‘with
sufficient awareness of the relevant circumstances and
likely consequences.’ ” Bradshaw v. Stumpf, 545 U.S. 175, 183
(2005) (quoting Brady v. United States, 397 U.S. 742, 748
(1970)). The Court has also noted that the voluntariness
of a plea “can be determined only by considering all of
the relevant circumstances surrounding it.” Brady, 397
U.S. at 749; see also United States v. Sura, 511 F.3d 654, 659
(7th Cir. 2008); United States v. Gilliam, 255 F.3d 428, 433
(7th Cir. 2001). To determine if Wozny’s no contest plea
was entered knowingly and voluntarily, we review the
decision of the Wisconsin Court of Appeals, the last state
court to rule on the merits of Wozny’s claim. Simelton v.
Frank, 446 F.3d 666, 669-70 (7th Cir. 2006).
This court reviews “the district court’s findings of fact for
clear error and its legal conclusions, as well as mixed
No. 07-3700 9
questions of law and fact, de novo.” Rizzo v. Smith, 528 F.3d
501, 505 (7th Cir. 2008). Under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), a federal
court may issue a writ of habeas corpus only if the decision
of the last state court to examine the merits of the peti-
tioner’s claim was (1) “contrary to, or involved an unrea-
sonable application of, clearly established Federal Law, as
determined by the Supreme Court of the United States,” or
(2) “was based on an unreasonable determination of
the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
Our court has held that the question of whether a plea
of guilty is entered knowingly, intelligently and voluntary
is a mixed question of law and fact “that requires the
application of legal principles to historical facts.” Nash v.
Israel, 707 F.2d 298, 301 (7th Cir. 1983). Although the
district court was required to accord a presumption of
correctness to the state courts’ findings of fact, the dis-
trict court was not bound by the state courts’ legal con-
clusion that Wozny’s plea of guilty was entered knowingly
with the advice of competent counsel. See Sumner v. Mata,
455 U.S. 591, 597 (1982) (per curiam). “It [was] the
district judge’s duty to apply the applicable federal law
to the state court fact findings independently.” See Town-
send v. Sain, 372 U.S. 293 (1963).
In this case, Wozny argues that the state court’s finding
that his plea was made knowingly and voluntarily was
erroneous. Regardless of whether Wozny’s claim raises
an issue of “pure fact, pure law, or a mixed question of
law and fact, we are required under the AEDPA to review
10 No. 07-3700
the state court’s adjudication on the merits of his claim
deferentially and set the decision aside only if the court
committed unreasonable error.” Ward v. Sternes, 334 F.3d
696, 704 (7th Cir. 2003). Unreasonableness “serves as the
touchstone against which state court decisions based upon
determinations of fact in light of the evidence presented
are evaluated. 28 U.S.C. § 2254(d)(2). As this court ex-
plained in Ward v. Sternes, 334 F.3d 696 (7th Cir. 2003),
As is the case under section 2254(d)(1), a petitioner’s
challenge to a decision based on a factual determina-
tion will not succeed if the petitioner merely evidences
that the state court committed error. Instead, he
must further establish that the state court committed
unreasonable error. And, section 2254(d)(1) provides
a mechanism by which the petitioner can prove that
unreasonableness. If the petitioner can show that the
state court determined the underlying factual issue
against the clear and convincing weight of the evi-
dence, the petitioner has not only established that the
court committed error on reaching a decision based
on that faulty factual premise, but has also gone a
long way towards proving that it committed unrea-
sonable error. A state court decision that rests upon
a determination of fact that lies against the clear
weight of the evidence is, by definition, a decision so
inadequately supported by the record as to be
arbitrary and, therefore, objectively unreasonable.
Id. at 703-04.
Wozny initially contends that his pleas were not
knowing and voluntary because he never admitted guilt,
No. 07-3700 11
but instead maintained his innocence throughout the state
proceedings. Plea agreements are “contracts that must be
fulfilled.” Hartjes v. Endicott, 456 F.3d 786, 790 (7th Cir.
2006). For that reason, defendants “cannot obtain relief
by the expedient of contradicting statements freely
made under oath, unless there is a compelling reason
for the disparity.” Nunez v. United States, 495 F.3d 544, 546
(7th Cir. 2007). In this case, Wozny entered a plea of no
contest to the charges and “[b]y pleading no contest, a
defendant impliedly admits all allegations in the indict-
ment.” Gomez v. Berge, 434 F.3d 940, 942 (7th Cir. 2006).
Additionally, it should be noted that during postconvic-
tion proceedings, Wozny stated that he apologized to the
victims at his sentencing hearing. The apology was thus
an explicit acknowledgment of responsibility for the
offenses, which is far from maintaining his innocence
as Wozny contends.
Wozny next claims that his pleas were unknowing and
involuntary because neither counsel nor the trial court
explained the elements of the crimes to him. Specifically,
Wozny contends that no one told him that the contact
with the victims must have been for the purpose of
sexual arousal or gratification. This argument stems
exclusively from Wozny’s testimony at the postconviction
hearing. But the trial court discredited the testimony of
the defendant and his counsel because it contradicted
the statements by both counsel and Wozny at the plea
hearing. See Singh v. Gonzales, 487 F.3d 1056, 1060 (7th Cir.
2007) (noting that earlier sworn statements “cannot be
set aside the moment the oath-taker alleges that he did
not understand”).
12 No. 07-3700
Wozny also argues that his pleas were involuntary and
unknowing because they were entered seven days before
trial was scheduled to begin. At the postconviction
motion hearing, Wozny was asked how long he had to
respond to the state’s offer. Wozny replied, “Almost
overnight.” But, aside from asserting generally that this
was a “rushed proceeding,” Wozny does not explain how
more time would have helped him. The time Wozny had to
consider the plea agreement is immaterial to the question
of whether his pleas were knowing and voluntary. Because
the petitioner has failed to demonstrate that the timing
of his pleas rendered them involuntary, this court must
uphold the state courts’ determination that they were
voluntary. See United States v. Lundy, 484 F.3d 480, 484
(7th Cir. 2007) (noting that the proximity of the plea
agreement to trial is “irrelevant” so long as the defendant
understood and voluntarily entered into it); see generally
Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir.
2002) (“A plea is voluntary when it is not induced by
threats or misrepresentations, and the defendant is made
aware of the direct consequences of the plea . . . [a] plea is
knowing and intelligent when the defendant is competent,
aware of the charges and advised by competent counsel.”)
(internal citations omitted).
Wozny next complains that he was never informed about
the possibility of an Alford plea, see North Carolina v. Alford,
400 U.S. 25 (1970), and now suggests that he “was really
trying to enter an Alford type plea.” This assertion has no
support whatsoever in the record. Moreover, Wozny
affirmed both on the plea agreement and in open court
that he never contested having committed the crimes.
No. 07-3700 13
Thus, whether he was told of the existence of an Alford
plea has no bearing on his admission of guilt. See Hugi v.
United States, 164 F.3d 378, 382 (7th Cir. 1999).
Finally Wozny makes much over the confusion about
whether the additional state charges would be read-in and
dismissed or dismissed outright. But the trial court stated
it did not factor those extra counts in determining Wozny’s
sentence; accordingly, it is hard to see how that con-
fusion affected him in any way.
Furthermore, based on the record before us and because
the state courts’ denial of Wozny’s motion for
postconviction relief was not objectively unreasonable,
we affirm the district court’s denial of Wozny’s petition
under 28 U.S.C. § 2254.
8-21-08