United States District Court, E.D. Wisconsin
ORDER SCREENING HABEAS PETITION (DKT. NO. 1) AND
DIRECTING PETITIONER TO RESPOND, AND DENYING WITHOUT
PREJUDICE PETITIONER’S MAY 16, 2016 MOTION FOR
DISCOVERY (DKT. NO. 7)
PAMELA PEPPER United States District Judge
Sean Anthony Riker, a prisoner incarcerated at the Wisconsin
Secure Program Facility, filed a petition for a writ of
habeas corpus under 28 U.S.C. §2254. Dkt. No.
1. In the Circuit Court of Racine County, Wisconsin, the
petitioner was convicted of multiple crimes of violence and
was sentenced to over 200 years of incarceration.
his conviction, the petitioner pursued a direct appeal, in
which he argued that the evidence was insufficient to sustain
his conviction and that the sentence imposed was excessive.
The Wisconsin Court of Appeals affirmed the
petitioner’s conviction and sentence, and the Wisconsin
Supreme Court denied review. The petitioner then filed a
post-conviction motion under Wis.Stat. §974.06 in the
Circuit Court of Racine County, Wisconsin, in which he
reasserted his insufficiency of the evidence and excessive
sentence claims, along with several new claims: ineffective
assistance of trial counsel, ineffective assistance of
appellate counsel, and a claim that the trial court
erroneously admitted evidence of “other acts”
which deprived the petitioner of a fair trial by biasing and
confusing the jury. The circuit court denied that motion.
of the Rules Governing §2254 Proceedings says:
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 . . . .
screening a habeas petition, the 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).
case, the court finds that the petitioner’s claims
generally are cognizable on habeas review, and the
court cannot determine from the face of the petition that any
of these claims are procedurally defaulted. As far as the
court can tell, however, the only claims that the petitioner
presented to all levels of the Wisconsin courts are his
insufficiency of the evidence and excessive sentence claims.
The petition reflects that he raised those claims at all
three levels of his direct appeal. The petitioner presented
his remaining claims only to the trial court in his
§974.06 post-conviction motion; he has not yet presented
those claims to each level of the Wisconsin appellate courts.
the petitioner brings both exhausted and unexhausted claims,
his petition is a “mixed petition.” A federal
district court cannot decide a mixed petition. Rhines v.
Weber, 544 U.S. 269, 274-75 (2005). When a federal judge
reviews a petition and realizes that the petitioner has not
exhausted his state court remedies, the judge 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, 544 U.S. at 278; Rose v. Lundy, 455
U.S. 509, 510 (1982); Dressler v. McCaughtry, 238
F.3d 908, 912 (7th Cir. 2001).
petitioner filed his petition relatively close to the
expiration of the one-year limitations period in which he was
required to bring his habeas claims under
§2244(d)(1). A federal habeas petition, unlike
a properly filed state court post-conviction petition or
motion, does not toll (or pause) that statute of limitations.
If the court were to dismiss the petition because it is
mixed, it is possible (perhaps probable) that the petitioner
would lose the opportunity for federal review of his
exhausted claims before he has the opportunity to exhaust his
remaining claims in the state courts. In this situation,
courts usually will offer the petitioner a choice. The
petitioner can decide to withdraw his unexhausted claims,
after which the petition would no longer be mixed and the
petitioner could proceed immediately with his exhausted
claims in the federal habeas case. The petitioner
must understand, however, that by choosing option, he
possibly could lose his opportunity to seek federal
habeas review of his unexhausted claims. See
Rose v. Lundy, 455 U.S. 509, 520-21 (1982).
petitioner’s second option is to ask the court to stay
further proceedings on this petition and hold it in abeyance
while he exhausts his unexhausted claims in the state courts.
After the state court proceedings- including appeals-have
concluded, the petitioner could return to this court and
obtain federal review of all of his claims at one time. This
second choice would preserve the petitioner’s
opportunity for federal review of all of his claims, although
it would result in some delay in the court’s
adjudication of his exhausted claims. If the petitioner
chooses the second option, he must also show good cause for
court to stay action on his petition. Rhines, 544
U.S. at 277. The petitioner must show that (1) there is good
cause for the petitioner’s failure to exhaust his
claims in state court before filing his federal
habeas petition, (2) the unexhausted claims are
potentially meritorious, and (3) the petitioner did not
engage in intentionally dilatory litigation tactics.
Id. at 277- 78.
petitioner also has asked the court to issue two subpoenas
for evidence that the petitioner claims would support his
claim of innocence. Dkt. No. 7. The court construes this
request as a motion for discovery. Dkt. No. 7. The court will
deny this motion for a couple of reasons. First, as the court
explained above, it cannot rule on the petition at this time,
because it is mixed.
petitioner must decide whether he wants to ask the court to
dismiss this habeas case altogether, or to dismiss
only his unexhausted claims, or to stay the federal
habeas case while he exhausts his unexhausted claims
in state court.
until the court knows which claims it will be deciding (and
when), it cannot tell whether discovery is appropriate.
Because a habeas case is a review of what already
happened in an old case (and not the start of a new case), it
is not often that courts allow discovery of new evidence in
the context of a habeas petition. The court cannot
tell whether this is one of those unusual cases in which
discovery would be appropriate until it knows which claims
the petitioner is going to pursue in federal court, and when.
court ORDERS that on or before JUNE 27,
2016, the petitioner shall file a document, in which he
states whether he chooses to dismiss this federal
habeas case, or withdraw his unexhausted claims and
proceed with only with his insufficiency of the evidence and
excessive sentence claims, or to request a stay and abeyance
of the federal case so that he may attempt to exhaust his
unexhausted claims in state court. If the petitioner has not
filed such a document by June 27, 2016, the court will