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Full Opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
SOPHEA MOUTH,
Petitioner, OPINION and ORDER
v.
21-cv-58-wmc
MICHAEL MEISNER, Warden,
Fox Lake Correctional Institution,1
Respondent.
Petitioner Sophea Mouth, a state prisoner representing himself while confined at the
Fox Lake Correctional Institution, has filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254, challenging his 2017 conviction in Dane County Case No. 2015CF2486, on
one count of second-degree intentional homicide and one count of attempted second-degree
homicide. This court allowed Mouth to proceed on two claims asserted in his petition: (1) the
trial judge erred in refusing to instruct the jury that in order to evict occupiers from business
premises that were subject to foreclosure, a property owner cannot rely on “self-help” but needs
to rely on a writ of assistance; and (2) the trial court erred in refusing to instruct the jury that
Mouth did not have a duty to retreat before shooting the two men under the “castle doctrine,”
codified at Wis. Stat. § 939.48(1m). (See dkt. ## 6 and 10.) Respondent has since moved to
dismiss Mouth’s petition, contending that his claims are state-law issues not cognizable on
federal habeas review and alternatively, that Mouth procedurally defaulted his claims by failing
to fairly present them in the state courts. Along with his opposition brief, Mouth filed a motion
for an evidentiary hearing. (Dkt. #30.) For the following reasons, this court will grant
1 Because Mouth was transferred to Fox Lake Correctional Institution on December 22, 2023 (see
dkt. #29), the court has revised the caption to reflect that Warden Michael Meisner is the proper
respondent.
respondent’s motion to dismiss the petition and deny Mouth’s motion for an evidentiary
hearing.
BACKGROUND2
Petitioner Sophea Mouth ran a vehicle repair shop on a property that his fiancé, Bophea
So, attempted to purchase through a land contract. However, So fell behind on payments and
failed to redeem the default during the foreclosure’s redemption period. Sometime after this,
the property owner’s husband, TD, and another man, GSP, arrived at the property when
Mouth was present. While the facts surrounding that meeting were contested at trial, it is
undisputed that Mouth retrieved a handgun and shot both men, killing TD and severely
injuring GSP. The State charged Mouth with first-degree intentional homicide and attempted
first-degree intentional homicide, both while using a dangerous weapon, in Dane County Case
No. 2015CF2486.
At trial, Mouth argued that he had acted in self-defense because he had a bum leg and
felt backed into a corner by TD and GSP. The circuit court instructed the jury on perfect and
imperfect self-defense under Wisconsin law, but denied Mouth’s request to further instruct the
jury as follows:
1. Wisconsin property law required the property owner to obtain a writ of
assistance issued by the court overseeing the foreclosure action to evict So and
Mouth from the business premises.
2. Because Wisconsin’s castle doctrine provides that there is no duty to retreat, the
jury may not consider evidence relating to whether Mouth had an opportunity
2 The court takes the following facts from the petition, publicly available state court records, and
the state court of appeals’ decision affirming Mouth’s convictions, State v. Mouth, 2019 WI App
39, ¶ 1, 388 Wis. 2d 257, 932 N.W.2d 188 (unpublished opinion), rev. denied, 2019 WI 104, ¶ 1,
389 Wis. 2d 242, 936 N.W.2d 820 (dkt. #17-4). The court will address additional facts in the
body of this opinion as they become relevant to its analysis.
to flee or retreat in deciding whether he acted in self-defense. See Wis JI—
Criminal 805A (2018); Wis. Stat. § 939.48(1m).
The circuit court reasoned that the property law instruction was irrelevant and potentially
misleading because the elements of homicide and self-defense are the same, regardless of
whether the property owner (or her agent) was violating state eviction law. The circuit court
further held that TD had the right, and possibly a duty, to check on the property as the
property owner’s agent during the foreclosure redemption period, meaning the castle doctrine
did not apply because TD and GSP were not in the process of unlawfully and forcibly entering
Mouth’s place of business.
The jury convicted Mouth on the lesser-included offenses of second-degree intentional
homicide and attempted second-degree homicide, accepting Mouth’s affirmative defense of
unnecessary defensive force (imperfect self-defense) under Wis. Stat. § 940.01(2)(b). The
circuit court sentenced Mouth to 25 years in prison followed by 15 years extended supervision
for the homicide, to be served concurrently with 20 years in prison followed by 10 years
extended supervision for attempted homicide.
On direct appeal on August 29, 2018, Mouth, through counsel, argued in relevant part
that the trial court erred by not accepting his proposed jury instructions concerning
Wisconsin’s eviction law and castle doctrine.3 (See dkt. #17-2, at 14-20.) The court of appeals
3 Mouth additionally argued on appeal that the trial court erred in denying his request to allow
himself to demonstrate his impaired walking ability to the jury and that he was entitled to a new
trial in the interest of justice. (See dkt. #17-2, at 20-24.) However, Mouth did not include these
arguments in his petition for review in the Wisconsin Supreme Court, (see dkt. #17-5), and was not
allowed to proceed on any claim related to these issues in this court (see dkt. ##6 and 10). Mouth
also suggests for the first time in his brief in support of his petition that the trial court erred by
excluding evidence of TD’s “violent criminal history.” (Dkt. #3, at 8-9.) Because Mouth has not
properly raised these additional issues, the court will not consider them. In any event, any such
challenges would be precluded for the same reasons as the claims on which he has been allowed to
proceed.
affirmed Mouth’s convictions, concluding that there was no ground on which to reverse the
circuit court’s conclusion that the property law instruction was irrelevant and agreeing that
there was no evidence to support a finding of unlawful entry to support a castle doctrine
instruction. (See dkt. #17-4, at ¶¶ 12-14 and 19-20.) Mouth’s subsequent, unsuccessful
petition for review in the Wisconsin Supreme Court, presented only two issues: (1) “[d]id the
trial court err in ruling that Mr. Mouth could not invoke the ‘castle doctrine’ as a defense”;
and (2) “[d]id the trial court err in excluding the requested [d]efense [j]ury [i]nstruction that
self-help evictions are prohibited by Wisconsin law?” (Dkt. #17-5.)
OPINION
Respondent moves for dismissal of Mouth’s claims on two grounds, which the court will
address separately.
A. No Federal Right at Issue
Generally, errors of state law are not cognizable on habeas review, see, e.g., Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991), as “[t]he remedial power of a federal habeas court is
limited to violations of the petitioner’s federal rights, so only if a state court’s errors have
deprived the petitioner of a right under federal law can the federal court intervene,” Perruquet
v. Briley, 390 F.3d 505, 511 (7th Cir. 2004); see also Kimbrough v. Neal, 941 F.3d 879, 882 (7th
Cir. 2019) (petitioner must show that state court’s decision was “unreasonable application of
federal law—not a state court’s resolution of a state law issue”). Here, the state appellate
court’s decision affirming the circuit court’s denial of Mouth’s proposed jury instructions was
clearly based on a resolution of state law. See Perruquet, 390 F.3d at 511 (citing McGuire, 502
U.S. at 70-71) (“Because a state trial court’s evidentiary rulings and jury instructions turn on
state law, these are matters that are usually beyond the scope of federal habeas review.”).
Specifically, the court of appeals analyzed the relevancy and applicability of Wis. Stat. §
939.48(1) (self-defense), § 939.48(1m)(ar) (castle doctrine), and § 940.01(2)(b) (unnecessary
defensive force) to Mouth’s defense, and further relied on the holding in State v. Chew, 2014
WI App 116, ¶ 1, 358 Wis. 2d 368, 856 N.W.2d 541, a state law case defining the meaning
of “an unlawful and forcible intruder” for the purposes of the castle doctrine. (See dkt. #17-4,
at ¶¶ 14 and 16-20.) Thus, the only way for this court to grant him habeas relief would be to
overrule the court of appeals on a matter of state law, which this court has no authority to do.
See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (a state court’s interpretation of state law “binds
a federal court sitting in habeas corpus”); Estelle, 502 U.S. at 67-68 (“[I]t is not the province
of a federal habeas court to reexamine state-court determination on state-law questions.”).
Nonetheless, in some limited circumstances, a state court’s jury instruction error may
violate a defendant’s due process right to a fundamentally fair trial under the Fourteenth
Amendment where the state court committed “an error so serious as to render it likely that an
innocent person was convicted.” Perruquet, 390 F.3d at 510. In addition, the United States
Supreme Court has held that state evidentiary rules and procedures must yield to the
defendant’s due process right “to a meaningful opportunity to present a complete defense.”
Chambers v. Mississippi, 410 U.S. 284, 302 (1973); Crane v. Kentucky, 476 U.S. 683, 690 (1986);
see also McDonald v. City of Chicago, 561 U.S. 742, 888 (2010) (Stevens, J., dissenting) (“[I]f a
State were to try to . . . deny persons any ability to assert self-defense in response to criminal
prosecution, that might pose a significant constitutional problem.”). Mouth cites this authority
in support of his contention that the circuit court’s refusal to grant his proposed jury
instructions denied him his constitutional right to a complete defense. However, the Supreme
Court has invoked this principle in non-capital cases only when the trial court has excluded
evidence or the testimony of defense witnesses, not to limitations on a defendant’s ability to
present an affirmative defense. Gilmore v. Taylor, 508 U.S. 333, 343-44 (1993) (refusing to
extend the right to present a defense to include the right to have the jury consider that defense);
Burris v. Smith, 819 F.3d 1037, 1042 (7th Cir. 2016). Indeed, “the fact that [an] instruction
[or lack thereof] may have precluded consideration of evidence relevant under state law does
not mean that it violated the Constitution,” because “an instruction that merely assigns little
or no weight to one category of evidence does not shift the burden of proof.” Burris, 819 F.3d
at 1042.
As respondent argues, any error the circuit court may have made in failing to issue
Mouth’s proposed instructions to the jury was not so serious as to deprive Mouth of his right
to present a defense, and certainly did not make it likely that an innocent person was convicted.
Not only did the circuit court permit Mouth to argue that he acted in self-defense and instruct
the jury on perfect and imperfect self-defense, it did not excuse the State from proving each
element of the charged offenses, and disproving Mouth’s defenses, beyond a reasonable doubt.
See Brown v. Jess, 521 F. Supp. 3d 792, 800 (W.D. Wis. 2021), aff'd sub nom. Brown v. Eplett, 48
F.4th 543 (7th Cir. 2022) (habeas petitioner’s contention that state court failed to give castle
doctrine instruction was not constitutional claim because due process does not protect against
errors of state law or guarantee criminal defendant right to present evidence regarding all
possible state-law defenses). In fact, Mouth’s defense here was at least partially successful in
that the jury convicted him of the lesser-included offenses of second-degree homicide and
attempted second-degree homicide.
Finally, as the circuit court and court of appeals reasonably concluded, instructing the
jury on proper state eviction procedures and the castle doctrine would have made no difference
in Mouth’s defense. With respect to eviction procedures, “any proof regarding whether [TD]
was a ‘wrongdoer’ under property laws was irrelevant” to “whether Mouth subjectively or
reasonably believed that lethal force was necessary to terminate an unlawful interference with
his person.” (Dkt. #, at ¶ 14 (citing Wis. Stat. § 939.48(1) (self-defense definition) and §
940.01(2)(b) (unnecessary force definition).) In addition, “regardless whether [TD] could
lawfully direct Mouth to vacate the premises, there was no evidence to support a jury finding
that TD had unlawfully entered the premises,” as to warrant the castle doctrine instruction.
(Id., at ¶ 18.)
For all of these reasons, the trial court’s discretionary decisions regarding the jury
instructions did not deprive Mouth of a complete defense. However, as explained below, even
if the circuit court’s failure to issue Mouth’s requested jury instructions somehow implicated
Mouth’s due process rights under the Fourteenth Amendment, he procedurally defaulted his
due process claim by failing to fairly present it in the Wisconsin state courts and show cause
for that default.
B. Procedural Default
Federal court review of a habeas petition is deferential and limited; it is not “a
substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86,
102-03 (2011). Thus, before a federal court may review the petition’s merits, a petitioner
must: (1) exhaust all remedies available in the state courts, and (2) fairly present any
federal claims in state court first. Otherwise, he risks procedural default, see Chambers v.
McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001), which will bar federal habeas relief unless
the petitioner can demonstrate both cause for and prejudice from that default, or establish
that denial of relief will result in a miscarriage of justice, Lewis v. Sternes, 390 F.3d 1019,
1026 (7th Cir. 2004).
Respondent contends that Mouth failed to present a federal due process claim both
on direct appeal in the Wisconsin Court of Appeals and in his petition for review by the
Wisconsin Supreme Court, and he cannot return to the state courts to do so now. See Wis.
Stat. § 808.10(1) (petition for review must be filed within 30 days of court of appeals’
decision). To fairly present a claim in state court, a petitioner must “alert th[e] court to
the federal nature of the claim.” Bolton v. Akpore, 730 F.3d 685, 695 (7th Cir. 2013)
(citation omitted). In making this determination, this court considers four factors: (1)
“whether the petitioner relied on federal cases that engage in constitutional analysis”; (2)
“whether the petitioner relied on state cases which apply a constitutional analysis to similar
facts”; (3) “whether the petitioner framed the claim in terms so particular as to call to mind
a specific constitutional right”; and (4) “whether the petitioner alleged a pattern of facts
that is well within the mainstream of constitutional litigation.” Wilson v. Briley, 243 F.3d
325, 327 (7th Cir. 2001).
With respect to the first two factors, a review of the record shows that Mouth did
not rely on any federal or state cases that applied a due process analysis, instead citing
Wisconsin cases interpreting the meaning and applicability of Wisconsin statutes related
to eviction and the castle doctrine. Mouth also made clear that he was arguing an issue of
state law by asserting that the trial court “erroneously exercised its discretion” when it
refused to provide his requested instructions. (Dkt. #17-2, at 15.) Similarly, Mouth did
not frame his claim in terms so particular as to call to mind a due process violation, nor
did he allege a pattern of facts well within the mainstream of constitutional litigation. As
discussed above, Mouth’s substantive arguments in the state courts, and the state courts’
subsequent rulings, are based solely on state law and contain no hint of a constitutional
analysis of his rights under the Due Process Clause of the Fourteenth Amendment. Indeed,
given that challenges to jury instructions are generally not within the mainstream of
constitutional litigation, see Perruquet, 390 F.3d at 514, the state appellate courts had no
reason to believe that Mouth was trying to raise a constitutional claim. Therefore, Mouth
has procedurally defaulted his due process claim related to the jury instructions. See Wilson
v. Cromwell, 58 F.4th 309, 319 (7th Cir. 2023); Buelow v. Dickey, 847 F.2d 420, 425 (7th
Cir. 1988) (discussing requirements of Wis. Stat. § 808.10 and instructing federal courts
to “respect a state court’s finding of waiver or procedural default under its own laws”).
In addition, as respondent argues, to the extent that Mouth may now be trying to
assert a constitutional claim based on the trial court’s exclusion of evidence of (1) his
attempts to demonstrate his gait to the jury, and (2) TD’s “violent criminal history,” (dkt.
#3, at 6-11), he has procedurally defaulted those claims by not raising them in the state
supreme court.
To overcome his default, Mouth now suggests that his appellate attorney was
ineffective for not framing his claims as due process violations4 either on direct appeal or
4 The court presumes that Mouth also faults his appellate attorney for not raising in the petition
for review any additional claim related to the trial court’s denial of his request to demonstrate his
disability or present evidence of TD’s criminal history.
in his petition for review, both of which were required to preserve his claims. (Dkt. #27,
at 18-20.) While ineffective assistance of counsel may “constitute cause to set aside a
procedural bar,” Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010), “[t]here is no
federal constitutional right to the effective assistance of counsel in a discretionary appeal
such as [a] petition for review to the Wisconsin Supreme Court; the constitutional right to
counsel is guaranteed to a defendant only for trial and for the first appeal as of right.”
Young v. Dittmann, No. 14-CV-434, 2014 WL 6819348, at *2 (E.D. Wis. Dec. 2, 2014).
Thus, even if not justified, appellate counsel’s alleged ineffective assistance before the
Wisconsin Supreme Court cannot excuse Mouth’s procedural default. And even if it could,
an ineffective assistance claim “must be raised in state court before it can suffice on federal
habeas relief as cause to excuse the default of another claim,” Whyte v. Winkleski, 34 F.4th
617, 624 (7th Cir. 2022), which Mouth has not done.
C. Certificate of Appealability
The only remaining question on habeas review is whether to grant Mouth a certificate
of appealability. Under Rule 11 of the Rules Governing Section 2254 Cases, the court must
issue or deny a certificate of appealability when entering a final order adverse to a petitioner.
To obtain a certificate of appealability, the applicant must make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 274, 282
(2004). This means that “reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.” Miller El v. Cockrell, 537 U.S.
322, 336 (2003) (internal quotations and citations omitted). Because this court finds that no
reasonable jurists would debate whether Mouth’s claims are subject to federal habeas review,
and alternatively, procedurally defaulted, no certificate of appealability will be issued. Of
course, Mouth may seek a certificate from the court of appeals under Federal Rule of Appellate
Procedure 22.
ORDER
IT IS ORDERED that:
1) Respondent Michael Meisner’s motion to dismiss (dkt. #16) is GRANTED, and
petitioner Sophea Mouth’s petition for a writ of habeas corpus under 28 U.S.C. §
2254 is DISMISSED.
2) Petitioner’s motion for an evidentiary hearing (dkt. #30) is DENIED.
3) Petitioner is DENIED a certificate of appealability, although he may still seek a
certificate from the court of appeals under Federal Rule of Appellate Procedure 22.
Entered this 6th day of February, 2025.
BY THE COURT:
/s/
________________________________
WILLIAM M. CONLEY
District Judge Case Information
- Court
- W.D. Wis.
- Decision Date
- February 6, 2025
- Status
- Precedential