United States District Court, E.D. Wisconsin
ORDER DENYING RESPONDENT’S MOTION TO DISMISS (DKT. NO. 17) AND STAYING THE PETITION TO ALLOW THE PETITIONER TO EXHAUST HIS STATE COURT REMEDIES
HON. PAMELA PEPPER United States District Judge
On April 13, 2015, Billy Cannon, representing himself, filed a petition pursuant to 28 U.S.C. §2254, asserting that his state conviction and sentence violated the Constitution. Dkt. No. 1. On June 1, 2015, the court screened the petition, allowed him to proceed on a Fifth Amendment Double Jeopardy claim, and ordered the defendant to respond. Dkt. No. 13. On August 28, 2015, the respondent filed a motion to dismiss. Dkt. No. 17. The parties fully briefed the motion. Then, on December 14, 2015, counsel made an appearance on behalf of the petitioner. Dkt. No. 29. Counsel filed a motion, asking to allow him to file supplemental briefing on the motion to dismiss. Dkt. No. 30. The court granted that request, and the parties now have completed the supplemental briefing. For the reasons stated below, the court will deny the respondent’s motion to dismiss, and will stay proceedings to allow the petitioner to try to exhaust his state remedies.
I. FACTS AND PROCEDURAL HISTORY
A. The Petitioner’s Two State-Court Cases
i. State v. Cannon, Case No. 2009CF001337 (Milwaukee Cnty. 2009)
On March 20, 2009, the Milwaukee County district attorney filed a complaint against Billy Joe Cannon. State v. Cannon, Case No. 2009CF001337, available at https://wcca.wicourts.gov. The complaint alleged three counts: (1) manufacturing and delivering cocaine; (2) possession of a firearm by a felon; and (3) furnishing a firearm to an unauthorized person. The jury trial began on January 10, 2011, and on January 12, 2011, the jury found the petitioner not guilty as to Count One (the drug charge); the court dismissed that count. The court then adjourned the trial on the remaining two counts to March 23, 2011. Id. On that date, the petitioner entered a guilty plea to Count Two (possession of a firearm by a convicted felon), and the State moved to dismiss Count Three (furnishing a firearm to an unauthorized person). The court accepted the guilty plea to Count Two, entered judgment, and granted the State’s motion to dismiss Count Three. On April 11, 2012, the court sentenced the petitioner to two years’ imprisonment and two years of extended supervision on the Count Two charge of conviction. Id.
On April 13, 2012, the petitioner filed a notice of intent to pursue post-conviction relief. Id. On April 17, 2012, the court entered the judgment of conviction. On October 9, 2012, the court entered an order denying the petitioner’s motion to vacate the sentence. On May 22, 2013, the petitioner filed a pro se motion for post-conviction relief. The Wisconsin Court of Appeals ordered the state court to decide this motion by August 21, 2013, then extended the deadline to December 30, 2013. On December 18, 2013, the state court denied the motion. Id.
On December 19, 2013, the petitioner filed a notice of appeal. Id. On November 12, 2014, the Wisconsin Court of Appeals affirmed the judgment, and, on December 15, 2014, the petitioner sought review from the Wisconsin Supreme Court. On February 12, 2015, the Supreme Court affirmed the judgment of conviction. Id. As of the date of this order, the petitioner does not have any pending motions before any state courts in Case No. 2009CF001337.
ii. State v. Cannon, Case No. 2011CF000924 (Milwaukee Cnty. 2011)
On February 22, 2011-a couple of years after the Milwaukee County district attorney charged him in the previously-described case-an arrest warrant was issued for the petitioner. State v. Cannon, Case No. 2011CF000924, available at https://wcca.wicourts.gov. The district attorney’s office filed a complaint on February 24, 2011, charging the petitioner with three counts: (1) manufacturing and delivering cocaine; (2) possession of THC with intent to distribute; and (3) furnishing a firearm to an unauthorized person. At the arraignment on March 7, 2011, the petitioner entered not-guilty pleas on all counts. The case proceeded to a jury trial on February 10, 2014. On February 14, 2014, the jury found the petitioner guilty on all three counts. Id.
On April 1, 2014, the petitioner was sentenced by the Milwaukee County Circuit Court. Id. On the manufacturing and delivering cocaine charge alleged in Count One, the petitioner received twelve years of incarceration and ten years of extended supervision. On the marijuana charge alleged in Count Two, the court sentenced the petitioner to seven years in prison and four years of extended supervision, to run concurrently with the sentence imposed in Count One. On the furnishing a firearm charge in Count Three, the petitioner received four years in prison and four years of extended supervision, to run consecutive to the sentences imposed in Counts One and Two. Id. The court entered the judgment of conviction on April 4, 2014.
On April 2, 2014, immediately following his sentence, the petitioner filed a notice of intent to pursue post-conviction relief. Id. That same day, he filed a motion for sentence credit. The court granted the sentence credit motion on April 3, 2014, giving the petitioner credit for fifty-five days of time served toward Counts One and Two. Id. The next day, the petitioner filed another notice of intent to seek post-conviction relief. While it is not entirely clear from the circuit court docket, it appears that the petitioner pursued one or the other of the post-conviction relief motions to the Wisconsin Court of Appeals and to the Wisconsin Supreme Court. On May 27, 2014, the Wisconsin Supreme Court denied the petitioner’s petition for review. Id.
On August 11, 2015, the Wisconsin Court of Appeals ordered the petitioner to file a post-conviction motion or notice of appeal by October 23, 2015. Id. The court eventually extended that deadline to March 29, 2016. This means that, as of the date of this order, the petitioner continues to pursue ...