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Foster v. Pollard

United States District Court, W.D. Wisconsin

July 12, 2016

ARTHUR FOSTER, Petitioner,
v.
WILLIAM POLLARD, Warden, Waupun Correctional Institution, Respondent.

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge.

         Petitioner 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.

         FACTS

         Foster 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.

         On 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 On September 4, 1996, the Wisconsin Court of Appeals rejected that argument and affirmed the conviction in an unpublished opinion.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.

         On 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.

         In 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 14, 2013.

         On 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.

         OPINION

         I. Statute of Limitations for Habeas Review

         As 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).

         Where a 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. ยง 808.10(1). That date triggered the statute of limitations on federal habeas corpus review, which expired one year later on October 4, ...


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