In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-3700

PAUL C. WOZNY,

Petitioner-Appellant,

v.

GREGORY GRAMS, 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.

____________

ARGUED MAY 8, 2008—DECIDED AUGUST 21, 2008

____________

Before COFFEY, RIPPLE, and KANNE, Circuit Judges.

COFFEY, 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 sentenced 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 intelligently entered. Because the district court correctly determined 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 twentyfive years’ imprisonment. The remaining charges were read

into the record, considered by the court, and later dismissed.

 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 responded, “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 stipulated.” 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 defendant 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 sentencing 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 sentencing, 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 voluntarily 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 discussed 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 acknowledged 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 satisfied 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 understood 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 agreement 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 readin 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 necessary 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 contest. 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 “operates 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 petitioner’s claim was (1) “contrary to, or involved an unreasonable 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 district court was not bound by the state courts’ legal conclusion 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 Townsend 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 explained 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 determination 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 evidence, 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 unreasonable 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 indictment.” Gomez v. Berge, 434 F.3d 940, 942 (7th Cir. 2006).

Additionally, it should be noted that during postconviction 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 confusion 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