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Bogan v. Foster

United States District Court, E.D. Wisconsin

October 8, 2016

GABRIEL J. BOGAN, Petitioner,
v.
BRIAN FOSTER, Respondent.

          ORDER DENYING REQUEST TO HOLD CASE IN ABEYANCE, DKT. NO. 1, SCREENING PETITION, AND SETTING BRIEFING SCHEDULE

          HON. PAMELA PEPPER United States District Judge.

         On May 9, 2016, the petitioner filed a petition for habeas relief pursuant to 28 U.S.C. §2254. Dkt. No. 1. In the body of the petition, the petitioner stated, “Bogan seeks to hold this petition in abeyance so that he may finalize his State §974.06 motion and file it to exhaust his Federal remedies.” Id. at 7, 8, 9. The petition did not explain why the petitioner had not exhausted his remedies.

         On June 28, 2016, Magistrate Judge William E. Duffin, to whom the case was assigned at that time, issued an order requiring the petitioner to file a brief, explaining cause for his request for a stay of the habeas proceedings. Dkt. No. 7. Judge Duffin ordered the petitioner to file that brief by July 29, 2016. Id. The court has received nothing from the petitioner since that date.

         On August 18, 2016, the respondent asked the court to deny the petitioner's request to stay the proceedings. Dkt. No. 9. The respondent noted that the petitioner had not complied with Judge Duffin's order to file a brief, and also indicated that according to the Wisconsin Circuit Court Access Program (“CCAP”), the petitioner had not filed a §974.06 motion in state court. Id.

         It is now five months since the petitioner filed his petition. The court has not heard from him since that time. He did not file the brief ordered by Judge Duffin, nor did he respond to the respondent's request that the court deny the motion to hold the proceedings in abeyance. The court has checked the Wisconsin Inmate Locator web site; it appears that the petitioner remains in custody at Waupun Correctional Institution. Because the petitioner has not explained caused for his request to hold the case in abeyance, the court will deny that request.

         Judge Duffin granted the petitioner's request to proceed without prepaying the filing fee. Dkt. No. 7. The court will screen the case pursuant to Rule 4 of the Rules Governing §2254 Proceedings. 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 if 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 petition indicates that in the summer of 2012, the petitioner was convicted in the Milwaukee County Circuit Court on one count of first-degree reckless homicide and one count of first-degree recklessly endangering safety, both by use of a dangerous weapon. Dkt. No. 1 at 2. The petitioner indicates that he was sentenced to serve “30 years (22 in, 8 out).” Id. He states that he appealed this conviction, on the ground that “[t]rial counsel was prejudicially ineffective for failing to 1) argue for defense of others, and 2) request a defense of others instruction since the evidence was sufficient to warrant said defense and instruction.” Id. at 3. The petitioner indicates that his conviction was affirmed by the court of appeals, that he sought review in the Wisconsin Supreme Court, and that that was denied. Id.

         The petitioner lists four grounds for relief in the petition, but all of them relate to his claim that his trial counsel provided ineffective assistance of counsel. In Ground One, he argues that counsel was ineffective for failing to research self-defense and defense-of-others defenses. Id. at 6. In Ground Two, he argues that his lawyer was ineffective because, since she didn't research these issues, she didn't tell him how these defenses could've impacted him and his case. Id. at 7. In Ground Three, he states that his lawyer was ineffective in failing to investigate facts surrounding these defenses, and discuss the defenses with him. Id. at 8. In Ground Four, he argues that his post-conviction counsel was ineffective for not raising these claims, and for not raising his trial counsel's ineffectiveness in not raising the claims. Id. at 9.

         The petitioner's claims that his trial lawyer and his post-conviction lawyer provided ineffective assistance of counsel in violation of the Sixth Amendment are the kinds of claims that are recognizable on federal 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 of a type that are generally cognizable on habeas review.

         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).

         It is not clear to the court from the face of the petition whether the petitioner has, in fact, exhausted these claims. The petitioner states that he appealed his conviction on the basis of ineffective assistance of counsel, and makes reference to the defense-of-others defense. It is not clear to the court whether he also raised the question of whether his trial counsel was ineffective for failing to explore and raise a self-defense claim. The petitioner did appeal his conviction all the way up to the Wisconsin Supreme Court; the respondent attached a court of appeals docket to his brief, confirming as much. Dkt. No. 9-2. And the petitioner appears to think that he hasn't exhausted the claims, given his request to stay these proceedings. But the court can't tell, based on the record before it, whether he exhausted in those appeals the same claims he raises here.

         At this stage, the respondent has not had the opportunity to weigh in on the merits of the exhaustion question. Because it is not clear at this early stage whether the petitioner has or has not exhausted the claims he raises here, the court will allow the petitioner to proceed, and he can ...


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