United States District Court, E.D. Wisconsin
WILLIAM J. LEE, Petitioner,
JUDY SMITH, Warden, Oshkosh Correctional Institution, Respondent.
ORDER SCREENING §2254 HABEAS CORPUS PETITION
(DKT. NO. 1), DENYING THE PETITIONER’S MOTION FOR LEAVE
TO PROCEED IN FORMA PAUPERIS (DKT. NO. 2) AND ORDERING THE
RESPONDENT TO ANSWER OR OTHERWISE RESPOND
PAMELA PEPPER United States District Judge.
J. Lee, who is representing himself, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C.
§2254. Dkt. No. 1. The petitioner also filed a motion
for leave to proceed without prepayment of the filing fee.
Dkt. No. 2. The case is now before the court for screening
pursuant to Rule 4 of the Rules Governing §2254
Brown County Circuit Court, the petitioner was convicted of
one count of armed robbery with use of force, as a repeater.
Dkt. No. 1 at 2. Following his conviction, the petitioner
filed a notice of appeal, but he alleges that his lawyer did
not file any grounds supporting the appeal and abandoned his
case. Id. Over four years later, representing
himself, the petitioner filed a post-conviction petition for
a writ of habeas corpus in the state circuit court.
Id. The petitioner’s federal habeas
petition alleges that he raised due process and ineffective
assistance of counsel claims in the state habeas
petition. Id. at 3. The petitioner’s trial
counsel obtained leave to file a no-merit notice of appeal
and a no-merit report related to the petitioner’s
conviction. Dkt. No. 1-2 at 4. The petitioner then
successfully discharged his counsel and elected to proceed in
the state circuit court on the claims he had raised in his
state habeas petition. Id. The state
circuit court denied the petition. Id. In an opinion
dated October 13, 2015, the Wisconsin Court of Appeals
affirmed the trial court’s decision. Id. at 3.
The Wisconsin Supreme Court denied the petitioner’s
petition for review. See Dkt. No. 1 at 8. The
petitioner did not file a petition for a writ of
certiorari in the United States Supreme Court.
See generally, id.
petitioner subsequently filed this federal habeas
petition. Dkt. No. 1. The petition sets forth two grounds for
relief: (1) ineffective assistance of counsel; and (2)
violation of his due process right to appeal his conviction
by the state courts, which permitted his trial counsel to
file a late no-merit report. Id. at 7.
THE PETITIONER MAY PROCEED ON BOTH CLAIMS IN HIS
court now will review, or “screen” the petition.
Rule 4 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 . . . .
stage, the court reviews the petition and its exhibits to
determine whether the petitioner has set forth claims arising
under the Constitution or federal law that are cognizable on
habeas review, exhausted in the state court system,
and not procedurally defaulted.
petitioner’s ineffective assistance of counsel and due
process claims generally are cognizable on habeas
review. At the screening stage, the court expresses no view
on the merits of any of the petitioner’s claims; the
court finds only that the petitioner has stated claims that
are cognizable in a federal habeas case.
in order to decide whether the petitioner’s
habeas case can move forward, the court must
determine whether it appears, on the face of the petition,
that the petitioner has exhausted his state remedies on these
claims. Section 2254 states, “An application for a writ
of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it
appears that . . . the applicant has exhausted the remedies
available in the courts of the State . . . .” The
United States Court of Appeals for the Seventh Circuit has
held that a district court judge cannot consider the merits
of a petitioner’s habeas argument
“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). A prisoner exhausts a
constitutional claim when he has presented it to the highest
state court for a ruling on the merits. O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999); Arrieta v.
Battaglia, 461 F.3d 861, 863 (7th Cir. 2006). Once the
state’s highest court has had a full and fair
opportunity to evaluate the merits of the claim, a prisoner
is not required to present it again to the state courts.
Humphrey v. Cady, 405 U.S. 504, 516 n. 18 (1972).
the face of the petition and the attachments, it appears that
the petitioner has satisfied this requirement; at this
preliminary stage, it appears that he presented each of his
claims to each level of the Wisconsin state courts, and
ultimately was denied relief. The court notes, however, that
at this stage in the case, the respondent has not had an
opportunity to weigh in on the exhaustion question; nothing
in this order prevents the respondent from arguing that the
petitioner has not exhausted his claims, or from filing
pleadings based on that argument.
the court considers whether the petitioner procedurally
defaulted any of his claims. Even if a petitioner has
exhausted review of a constitutional claim in the state
courts, it is possible that a federal habeas court
can be foreclosed from reviewing the claim on the merits
because of a “procedural default.” A criminal
defendant “procedurally defaults” a claim-and
loses the right to federal habeas review-if the last
state court that issued judgment “ ‘clearly and
expressly’ states that its judgment rests on a state
procedural bar.” Harris v. Reed, 489 U.S. 255,
263 (1989) (quoting Caldwell v. Mississippi, 472
U.S. 320, 327 (1985)). There can be several kinds of state
procedural bars, including, but not limited to, failing
“to raise a claim of error at the time or in the place
that state law requires.” Trevino v. Thaler,
___ U.S. ___, 133 S.Ct. 1911, 1917 (2013). At this point in
the case, the court can discern no procedural default from
the face of the petition or its attachments. Therefore the
court will allow the petitioner’s habeas case
THE COURT WILL DENY THE PETITIONER’S MOTION FOR LEAVE