United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY District Judge.
Arthur Foster seeks a writ of habeas corpus to challenge a
state court conviction pursuant to 28 U.S.C. § 2254.
After conducting a preliminary review pursuant to Rule 4 of
the Rules Governing Section 2254 Cases in the United States
District Courts, the court issued an order directing Foster
to show cause why this case should not be dismissed as
untimely. After considering Foster's response, the
petition will now be dismissed as barred by the governing
one-year statute of limitations.
was charged with two counts of fist-degree intentional
homicide, among other things, in Pierce County Case No.
94CF114. In particular, Foster was accused of murdering an
elderly couple while robbing their home. On June 8, 1995,
Foster entered a guilty plea pursuant to North Carolina
v. Alford, 400 U.S. 25 (1970). On July 14, 1995, the
circuit court sentenced him to two consecutive terms of life
imprisonment. He is eligible for parole in 2050.
direct appeal, Foster challenged the denial of his pretrial
motion to suppress incriminating statements that he made to a
family friend while he was in custody. On September 4, 1996,
the Wisconsin Court of Appeals rejected that argument and
affirmed the conviction in an unpublished opinion. See
State v. Foster, No. 95-3270. Foster did not file a
petition for review with the Wisconsin Supreme Court.
October 19, 2009, Foster filed a motion to withdraw his
Alford plea, arguing that the prosecutor breached
the plea agreement during his sentencing hearing and that his
trial attorney failed to object. The circuit court denied
that motion on December 18, 2009. On December 14, 2010, the
Wisconsin Court of Appeals summarily affirmed that decision.
See State v. Foster, No. 2010AP6.
April 2012, the Wisconsin Court of Appeals denied
Foster's request for an extension of time to file a
post-conviction motion. Undeterred, Foster filed a petition
for a writ of habeas corpus in December of 2012, alleging
that the prosecutor breached the plea agreement in his case
by making an impermissible sentence recommendation and that
his attorneys failed to properly object or raise this issue
on appeal. On January 11, 2013, the Wisconsin Court of
Appeals summarily denied that petition after finding nothing
improper in the record:
Arthur Foster has filed a petition for a writ of habeas
corpus alleging ineffective assistance of his appellate
counsel. He contends the district attorney violated the plea
agreement by making an impermissible sentence recommendation.
However, the transcript of the sentencing hearing shows that
the district attorney complied with the plea agreement. He
made the recommendation that was required under the plea
agreement. After the sentencing court disregarded the
parties' sentence recommendations and imposed consecutive
life sentences without the possibility of parole, the
district attorney informed the court that he believed the
sentence just imposed exceeded the statutory maximum. The
district attorney merely informed the court of the maximum
penalties the district attorney believed the law allowed. He
did not attempt to undermine his earlier recommendation.
Rather, to Foster's benefit, he argued for a reduction in
the sentence just imposed by informing the court of the
statutory maximum penalties.
Foster v. Pollard, No. 2012AP2756. The Wisconsin
Supreme Court denied Foster's petition for review on June
August 6, 2013, Foster executed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254, and filed it with
this court. He raises the same claim that was rejected by the
state court in Foster v. Pollard, No. 2012AP2756.
Statute of Limitations for Habeas Review
explained in the court's show cause order, Foster's
petition is governed by the Antiterrorism and Effective Death
Penalty Act (the "AEDPA"), Pub. L. No. 104-132, 110
Stat. 1214, which was enacted on April 24, 1996. Under the
AEDPA, all habeas corpus petitions are subject to a one-year
limitations period found in 28 U.S.C. § 2244(d)(1),
which is designed to "encourag[e] prompt filings in
federal court in order to protect the federal system from
being forced to hear stale claims." Carey v.
Saffold, 536 U.S. 214, 226 (2002). Because the petition
was filed well after the AEDPA's effective date, the
one-year statute of limitations clearly applies. See
Lindh v. Murphy, 521 U.S. 320, 336 (1997).
prisoner challenges the validity of a state court judgment,
the statute of limitations begins to run at "the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review." 28 U.S.C. § 2244(d)(1)(A). The Wisconsin
Court of Appeals affirmed the judgment in Foster's case
on September 4, 1996. Although Foster did not appeal further
by filing a petition for review with the Wisconsin Supreme
Court, his time to do so expired 30 days later on October 4,
1996. See Wis. Stat. § 808.10(1). That date
triggered the statute of limitations on federal habeas corpus
review, which expired one year later on October 4, ...