Opinion
20-cv-1106-jdp 15-cr-99-jdp
08-18-2021
BRADLEY BAKKEN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
JAMES D. PETERSON District Judge
Bradley Bakken petitions for habeas relief under 28 U.S.C. § 2255, challenging his 2016 conviction for failing to register as a sex offender as required under the Sex Offender Registration and Notification Act. Bakken contends that his predicate conviction-a 2005 Wisconsin conviction for third-degree sexual assault-is not a “sex offense” as that term is defined in SORNA, and that his trial counsel was ineffective for failing to so advise him.
I will follow the reasoning of my decision in Harder v. United States, No. 14-CR-67-JDP, 2021 WL 3418958 (W.D. Wis. Aug. 5, 2021). Bakken's petition is untimely, and he offers no justification for the delay. But his petition would fail on the merits. Applying a categorical analysis, I conclude that Bakken's Wisconsin conviction constitutes a SORNA sex offense.
BACKGROUND
In 2004, Bakken was charged with sexual contact with a child under the age of 16. Presentence Report, Dkt. 19, ¶ 44. The criminal complaint alleged that he had had sexual intercourse with an unconsenting 15-year-old girl. Bakken pleaded no contest to an amended charge of third-degree sexual assault, in violation of Wis.Stat. § 940.225(3) (2003-04). He was sentenced to a two-year term of incarceration to be followed by four years of extended supervision.
Docket citations in the background section are to Bakken's underlying criminal case, No. 15-cr-99.
In 2014, Bakken absconded from supervision and left the state, travelling to Arizona and then to Texas. In April 2015, Bakken was arrested in Texas. The Wisconsin Department of Corrections determined that he had not updated his registration as a sex offender in Wisconsin, and he had not registered in Arizona or Texas.
In 2015, Bakken pleaded guilty to failing to register as a sex offender in violation of SORNA. He was sentenced to 48 months incarceration and five years of supervised release. Judgment was entered February 1, 2016. He did not appeal, so his conviction became final when the appeal deadline expired on February 15, 2016.
Bakken's supervised release was revoked on January 7, 2021. He was sentenced to 90 days incarceration with an additional term of supervision to follow. While Bakken's supervised release was under review, he filed the petition for habeas relief that is now before the court. He had not previously raised the issue that his Wisconsin conviction was not a SORNA “sex offense.”
On August 17, 2021, I found that Bakken had again violated the conditions of his release, and I revoked his supervision. Bakken was sentenced to 12 months and a day incarceration with no supervised release to follow. Dkt. 50.
ANALYSIS
A. Bakken's petition is untimely
Bakken acknowledges that his petition is untimely because it was filed long after the one-year limitations period in § 2255(f). He contends that under a proper legal analysis, he is actually innocent. Citing McQuiggin v. Perkins, 569 U.S. 383 (2013), Bakken contends that his actual innocence trumps the statute of limitations and any procedural default.
As I concluded in Harder, Bakken's position cannot be squared with Lund v. United States, 913 F.3d 665 (7th Cir.), cert. denied, 140 S.Ct. 191 (2019), in which the court of appeals enforced the § 2255 statute of limitations on a similar claim. Lund brought an untimely petition under § 2255 based on Burrage v. United States, 571 U.S. 204 (2014), a Supreme Court decision issued after his conviction that would have made him legally innocent of causing death by the distribution of heroin. The court of appeals, citing and applying McQuiggin, affirmed the denial of Lund's petition, reasoning that Lund could not use Burrage both as the basis for his claim of actual innocence to overcome his procedural default and as the substantive basis for his habeas petition. Id. at 668. Allowing him to do so would “completely undermine the statute of limitations from bringing initial § 2255 motions.” Id. The court of appeals rejected the idea that “[e]very time there is a retroactive interpretation of a criminal law, petitioners convicted under it would have an initial § 2255 claim based on the new interpretation indefinitely.” Id. at 669.
Like Harder, Bakken contends essentially that he has a § 2255 claim that endures indefinitely, completely undermining the statute of limitations. The court concludes that Bakken is not entitled to use his tardy assertion of actual innocence to overcome the statute of limitations.
B. Bakken is a sex offender under SORNA
The parties agree that whether Bakken's conviction is a SORNA sex offense is determined, at least initially, by a categorical analysis, which requires the court to compare the Wisconsin statute of conviction to the SORNA definition of “sex offense, ” without regard to Bakken's actual offense conduct. If the scope of the Wisconsin statute is broader than the definition of sex offense under SORNA, then a conviction under the Wisconsin statute is not a sex offense and Bakken should not have been convicted of failing to register.
1. Sexual act/sexual contact
Bakken's main argument is that the Wisconsin statute defines “third degree sexual assault” to include conduct that doesn't meet the SORNA definition in 34 U.S.C. § 20911(5)(A)(i). The 2003-04 version of Wisconsin third-degree sexual assault includes intentionally ejaculating, defecating, or urinating on another person for sexual purposes:
“Sexual contact” means any of the following:
...
2. Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant.Wis. Stat. § 940.225(5)(b)2.
The parties' dispute concerns the interpretation of the SORNA definition at issue, which is:
a criminal offense that has an element involving a sexual act or sexual contact with another;34 U.S.C. § 20911(5)(A)(i). The government contends that the terms “sexual act” and “sexual contact” should be given their ordinary meaning, so that “sexual act” would mean any act that is sexual, including, for example, ejaculating on another person. Thus, a conviction under a statute that criminalized ejaculating on someone is a sex offense, because it has an element involving a sexual act with another, even though no actual touching of the victim was required.
Bakken contends that the terms “sexual act” and “sexual contact” should be given the special definitions used in United States Code Chapter 109A, relating to federal sex abuse crimes. Both terms, as defined in the federal sex abuse chapter, require actual touching of the victim. “Sexual act” means:
(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;
(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;18 U.S.C. § 2246(2). “Sexual contact” is defined as follows:
the term “sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;18 U.S.C. § 2246(3). Both definitions require contact with specified body parts of the victim. A lewd act committed in the presence of the victim, but without touching the victim, would not qualify as a sexual act as that term is defined in Chapter 109A. So the question is whether the Chapter 109A definitions for the terms “sexual act” and “sexual contact” should be imported into the definition in § 20911(5)(A)(i) of SORNA.
As I did in Harder, I decline to import those definitions into the definition in § 20911(5)(A)(i) of SORNA, for two main reasons. First, some, but not all, parts of the SORNA definition of sex offense expressly cite federal definitions. Congress plainly demonstrated the intent to incorporate some federal definitions into SORNA, but it did not do so in subsection (5)(A)(i).
Second, the structure of SORNA supports using the broader, plain meaning of “sexual act” and “sexual contact.” An offender who is convicted of abusive sexual contact under 18 U.S.C. § 2244 is classified as a Tier II sex offender, thus subject to a 25-year registration requirement. § 20911(3)(A)(iv). Abusive sexual contact would include, among other things, sexual touching of the defined intimate parts of a minor by use of threats; it is the least serious of the federal sex abuse crimes. Tier I sex offenders are less serious offenders subject to only a 15-year registration period. A conviction for any federal sex abuse crime puts the defendant in Tier II or Tier III. So the tier structure demonstrates that SORNA also applies to a broader range of offenses, including offenses less serious than the federal sex abuse crimes.
The better interpretation of § 20911(5)(A)(i) is that “sexual act” and “sexual contact” do not incorporate the restrictive definitions from Chapter 109A, but reach a fuller range of sex offenses. “Sexual act” in this subsection means any act that is sexual, regardless of whether it involves touching the victim. Ejaculation, defecation, and urination are within the scope of third-degree sexual assault only if those acts are done intentionally and “either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant.” So the acts prohibited are all within the scope of “sexual acts” as that term would be commonly understood.
I conclude that the 2003-04 version of third-degree sexual assault is a categorical match to the SORNA definition of sex offense in 34 U.S.C. § 20911(5)(A)(i).
I need not reach the government's alternative argument that the 2003-04 version of third-degree sexual assault is divisible. If the statute were divisible, the court could consider certain case documents that would show that Bakken was convicted under the provisions of the statute that prohibits unconsented sexual intercourse. That would be a sex offense even under the more restrictive definition drawn from Chapter 109A.
2. Specified offense against a minor
The government also argues that Bakken is a sex offender because he committed one of the specified offenses against a minor defined in SORNA. The SORNA definition of sex offense includes offenses that are “a specified offense against a minor.” 34 U.S.C. § 20911(5)(A)(ii). Those specified offenses are, in turn, defined in § 20911(7). That section bears the heading “Expansion of definition of ‘specified offense against a minor' to include all offenses by child predators, ” which leaves little doubt that Congress intended a particularly capacious definition of “sex offense” for crimes involving minor victims.
I am not persuaded that those specified offenses are pertinent. The court is required to begin with a categorical analysis of the offense of conviction. United States v. Walker, 931 F.3d 576, 581 (7th Cir. 2019). Bakken's underlying offense conduct did, in fact, involve a minor victim, but his offense of conviction was not a crime against a minor. Third-degree sexual assault is a crime regardless of the age of the victim.
The government contends that subsection (7) calls for a circumstance-specific evaluation of Bakken's actual offense conduct. But the circumstance-specific approach may be used to consider the age of the victim only under the circumstances authorized by circuit precedent. The age of the victim may be considered in applying the SORNA carve-out for a close-in-age defendant under § 20911(5)(c). United States v. Rogers, 804 F.3d 1233, 1237 (7th Cir. 2015). And the age of the victim may be considered in determining which sex offender tier is applicable to the defendant. Walker at 578-81. Neither Walker nor Rogers authorize the court to look to Bakken's actual offense conduct to determine how he committed third-degree sexual assault. Doing so would invite judicial fact-finding that would be inconsistent with purposes of categorical analysis, one of which is to protect a defendant's right to a jury trial on any fact that increases his sentence exposure. See United States v. Thayer, No. 20-CR-88, slip op. at 2-4 (W.D. Wis. June 29, 2021).
C. Venue would have been improper under current law
Bakken also contends that his trial counsel was ineffective for failing to challenge the venue of his prosecution. The government concedes that under United States v. Haslage, 853 F.3d 331 (7th Cir. 2017), a defendant could not now be prosecuted in the Western District of Wisconsin for Bakken's conduct in 2014 and 2015. Under Haslage, a defendant's obligation to register terminates when he leaves the state. Thus he cannot be prosecuted for failing to update his SORNA registration in the state from which he has departed, but he could be prosecuted in the states of arrival, where he would have an obligation to register. I agree with the government that Haslage provides no ground for relief for Bakken.
Bakken's attorney would not have been ineffective in 2015 or failing to anticipate the Seventh Circuit's 2017 opinion in Haslage. The Supreme Court's decision in Nichols v. United States, 136 S.Ct. 1113, 1117 (2016), on which Haslage was based, came out two months after Bakken's conviction became final. Absent some special circumstances, an attorney is not ineffective for failing to anticipate developments in the law. Shaw v. Wilson, 721 F.3d 908, 916-17 (7th Cir. 2013). Although the Supreme Court had granted certiorari in Nichols after Bakken's plea but before his sentencing, I am not persuaded that his counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 689 (1984). Haslage would not establish Bakken's innocence: he could have been prosecuted for the SORNA violation in Texas, so Bakken has not established prejudice.
In any case, Bakken cannot overcome the untimeliness of his petition on this ground. Without any claim to actual innocence, his petition is plainly untimely and he offers no valid explanation for his procedural default.
CONCLUSION
There is a categorical match between the SORNA definition of sex offense and the 2003-04 version of Wisconsin third-degree sexual assault. I therefore conclude that Bakken was previously convicted of a sex offense, and he was thus properly convicted of failing to register as a sex offender. But because Bakken's petition raises complex legal questions that reasonable jurists might have resolved differently, I will grant Bakken a certificate of appealability. See Miller El v. Cockrell, 537 U.S. 322, 336 (2003).
ORDER
IT IS ORDERED that:
1. Bradley Bakken's petition for habeas relief under 28 U.S.C. § 2255 is DENIED.
2. Bakken is GRANTED a certificate of appealability.