United States District Court, E.D. Wisconsin
ORDER GRANTING MOTION TO STAY PETITION (DKT. NO. 2)
HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
On February 1, 2016, petitioner Johnny Maldonado, by his attorney Ellen Henak, filed a petition for habeas corpus relief under 28 U.S.C. §2254. Dkt. No. 1. The petitioner enclosed the $5.00 filing fee with his petition, and the docket shows that the clerk’s office processed that fee. Id. He also filed a motion to stay the petition in order to present his unexhausted claims to Wisconsin state courts. Dkt. No. 2. For the reasons stated below, the court will grant the motion.
On October 9, 2010 the state of Wisconsin charged the petitioner with first degree intentional homicide and attempted first degree intentional homicide. State v. Maldonado, No. 2010CF005110, available at https://wcca.wicourts.gov. A jury found him guilty of both counts. On April 20, 2012, the court sentenced the petitioner to life imprisonment for first degree intentional homicide. For the second count (attempted first degree intentional homicide) the court sentenced the petitioner to serve twenty years in prison, followed by ten years of extended supervision. The court imposed this sentence to run concurrent to the sentence imposed for the intentional homicide charge, but consecutive to any other sentence. The court entered the judgment of conviction on April 24, 2012. On June 8, 2012, the court entered a corrected judgment of conviction. The court again amended the judgment of conviction on December 5, 2014. Id.
On May 10, 2012, the petitioner filed a notice of intent to pursue post-conviction relief. Id. On January 1, 2013, the Wisconsin Court of Appeals extended the deadline for filing a post-conviction motion or notice of appeal to April 5, 2013. On June 17, 2013, the court of appeals extended the deadline to June 28, 2013. On June 28, 2013, the petitioner filed his notice of appeal with the Wisconsin Court of Appeals. On July 15, 2014, that court affirmed the circuit court’s decision, and, on August 15, 2014, the petitioner appealed to the Wisconsin Supreme Court. On November 13, 2014, the Supreme Court denied the petition for review. Id. According to the federal habeas petition, at each stage in the appeal process described above, the petitioner raised one issue: “Introduction of other acts evidence at trial was an abuse of circuit court’s discretion, and its use by the state prejudiced [the petitioner].” Dkt. No. 1 at 4.
The petition raises four grounds for relief. Dkt. No. 1-1 at 4-9. In grounds one, two, and three, the petitioner asserts a Sixth Amendment claim for ineffective assistance of trial counsel. Ground four asserts a Sixth Amendment claim for ineffective assistance of appellate counsel. Id.
II. EXHAUSTION OF REMEDIES AND PETITIONER’S MOTION TO STAY
Rule 4 of the Rules Governing §2254 Proceedings provides:
If it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time . . . .
When screening a habeas petition, a district court must determine whether the petitioner has exhausted all of his state-court remedies as to each claim contained in the petition. A district judge cannot consider the merits of a petitioner’s habeas claims “unless the state courts have had a full and fair opportunity to review them.” Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991). The petitioner first must have appealed the issues raised in the federal habeas petition all the way up to the highest court in the state for a ruling on the merits. Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir. 2007) (citations omitted). When a federal judge reviews a petition and realizes that the petitioner has not exhausted his state-court remedies, the judge either may dismiss the case entirely, stay the federal case to let the petitioner go back to state court to exhaust his remedies, or allow the petitioner to amend his petition to remove the unexhausted claims. 28 U.S.C. §2254(b)(1)(A); see also, Rhines v. Weber, 544 U.S. 269, 278 (2005); Rose v. Lundy, 455 U.S. 509, 510, (1982); Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir. 2001)).
In this case, the petition states that the petitioner raised one issue on appeal: “Introduction of other acts evidence at trial was an abuse of circuit court’s discretion, and its use by the state prejudiced [the petitioner].” Dkt. No. 1 at 4. On June 28, 2013, the petitioner filed his notice of appeal with the Wisconsin Court of Appeals. On July 15, 2014, that court affirmed the decision. Dkt. No. 1-2. The court of appeals “conclude[d] that the evidence was relevant to prove motive, and . . . was not unfairly prejudicial.” Id. at 2. The court cited the state court’s “broad discretion to admit or exclude evidence” and the “highly deferential” standard of review. Id. at 4 (internal quotation marks and citations omitted). The court concluded that the trial court had not “erroneously exercised its discretion, ” because the evidence had “a permissible purpose, ” it “had substantial probative value, ” and it “posed little danger of leading . . . to . . . improper inferences.” Id. at 8. On August 15, 2014, the petitioner appealed to the Wisconsin Supreme Court. On November 13, 2014, the supreme court denied the petition for review.
The petitioner provides a detailed description of the four claims for ineffective assistance of trial and appellate counsel that he raises in his federal habeas petition. Dkt. No. 1-1 at 4-9. In describing each claim, the petitioner acknowledges that he did not raise any of these issues on appeal to either the Wisconsin Court of Appeals or the Wisconsin Supreme Court. Id.
On February 1, 2016, the petitioner filed the instant motion to hold the petition in abeyance, to give him the opportunity to present his unexhausted claims to the Wisconsin state courts. Dkt. No. 2. The petitioner notes that once the Wisconsin Supreme Court denied his petition for review, the petitioner had ninety days to file a petition with the Supreme Court of the United States. Id. at 2 n.1 (citing 28 U.S.C. §2244(d)(1)(a)). Because he did not seek review with the Supreme Court, the petitioner’s one-year statute of limitations for filing his federal habeas petition began to run on February 11, 2015. This made “February 12, 2016 [the] deadline for filing this petition.” Id. at 2. The petitioner filed the petition before exhausting his remedies, as a “placeholder” to prevent him from losing his ability to file the federal habeas petition. Dkt. No. 2 at 2.
The court agrees that it appears that the petitioner has not exhausted the four claims he raises in his federal habeas petition. Rhines v. Weber allows federal district courts to stay unexhausted claims in situations in which outright dismissal of the petition could jeopardize the petitioner’s ability to later file a timely habeas petition, such as when the petitioner files his habeas petition ...