United States District Court, E.D. Wisconsin
GABRIEL J. BOGAN, Petitioner,
BRIAN FOSTER, Respondent.
ORDER DENYING REQUEST TO HOLD CASE IN ABEYANCE, DKT.
NO. 1, SCREENING PETITION, AND SETTING BRIEFING
PAMELA PEPPER United States District Judge.
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
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.
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.
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.
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 . . . .
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.
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.
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.
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.
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.
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.
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 ...