Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lee v. Smith

United States District Court, E.D. Wisconsin

August 22, 2016

WILLIAM J. LEE, Petitioner,
v.
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

          HON. PAMELA PEPPER United States District Judge.

         William 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 Proceedings.

         I. BACKGROUND

         In 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.

         The 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.

         II. THE PETITIONER MAY PROCEED ON BOTH CLAIMS IN HIS PETITION.

         The 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 . . . .

         At this 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.

         The 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.

         Next, 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).

         From 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.

         Finally, 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 to proceed.

         III. THE COURT WILL DENY THE PETITIONER’S MOTION FOR LEAVE ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.