United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
petitioner Christopher Haakenstad seeks a writ of habeas
corpus under 28 U.S.C. § 2254. I screened his petition
and determined that Haakenstad presented a mixed petition: he
had exhausted state remedies for some, but not all, of his
claims. Thus, on April 5, 2016, I directed Haakenstad to file
a notice indicating whether he wished to (1) dismiss his
unexhausted claims and proceed with his exhausted claims or
(2) dismiss his entire petition so that he could exhaust his
unexhausted claims. Id. When the court had not heard
back from Haakenstad, the clerk's office investigated his
whereabouts. Haakenstad's probation officer told the
clerk's office that he had absconded. Dkt. 11. On May 11,
2016, I dismissed Haakenstad's petition for failure to
prosecute. Dkt. 12. I also explained in my order that I would
dismiss the petition without prejudice and that Haakenstad
could file a new petition. Id. Judgment was entered
dismissing the petition without prejudice on the same day.
Dkt. 13. Four months later, instead of filing a new petition,
Haakenstad moved to vacate the May 2016 judgment. Dkt. 16. I
denied the motion because Haakenstad had not presented
anything that I had overlooked. Dkt. 18. In the order denying
his motion, I explained again that the judgment was without
prejudice to his filing a new petition. Id.
has not yet filed a new petition. He instead moves for
reconsideration of my order denying his motion to vacate
judgment. Dkt. 21. I will deny the motion as he does not
present anything that I overlooked. Haakenstad also moves to
file a new petition in a new case. Dkt. 22. I will grant that
Motion for reconsideration
presents two erroneous arguments in his motion for
reconsideration. First, Haakenstad contends that my April
2016 order instructing him to state how he wished to
proceed-i.e., whether he wished to proceed with his
unexhausted claim-was in error. This was so, he says, because
he had already moved to dismiss his unexhausted claim. Dkt.
21. But the April 2016 order was to confirm whether
Haakenstad understood the potential consequences of
dismissing his own claim: each state prisoner has only one
opportunity to pursue habeas relief in federal court. Dkt. 8,
at 3. And the April 2016 order had nothing to do with the
denial of his motion to vacate judgment. I denied his motion
to vacate judgment because he had presented nothing that I
had overlooked in dismissing the petition without prejudice,
not because he failed to respond to the April 2016 order.
is also mistaken as to the deadline for filing a habeas
petition. He apparently believes that he had run out of his
time to file a new petition when he moved to vacate judgment
and had I considered that fact, then I would have granted his
motion to vacate. That is wrong; a new petition would have
been timely if he had filed it when he moved to vacate
judgment, and it would still be timely if he files it soon.
Under 28 U.S.C. § 2244, a one-year period of limitation
starts on “the date on which the judgment became final
by the conclusion of direct review or the expiration of the
time for seeking such review.” A judgment becomes final
after the time for filing a petition for certiorari with the
United States Supreme Court passes; that period to file a
petition for certiorari is 90 days. Anderson v.
Litscher, 281 F.3d 672, 674 (7th Cir. 2002). This 90-day
tolling period applies even if the petitioner does not file a
petition for certiorari. Id.
according to Haakenstad's petition, the Wisconsin Court
of Appeals affirmed his conviction on April 24, 2015. Dkt. 1,
2. The Wisconsin Supreme Court denied his petition for review
on August 5, 2015. Id. Haakenstad's conviction
became final 90 days later, on November 4, 2015, when his
period to file a petition for certiorari with the United
States Supreme Court expired. Thus, the one-year limitation
period under 28 U.S.C. § 2244 started running on
November 4, 2015. Accordingly, contrary to Haakenstad's
belief, a new petition would have been timely if he had filed
it when he moved to vacate judgment on August 29, 2016, and
the deadline has still not run.
Motion to open a new case
alternatively requests that the court open a new case and
that the court file in that case the same habeas petition
that he had already filed in this case. Dkt. 22. Haakenstad
explains in his letter that he has attempted to file a new
habeas petition but he has been unable to do so because
prison officials have denied him access to necessary
documents and means to write a new petition. Id.
Ordinarily, the petitioner, not the court, files a habeas
petition to open a habeas case, but it is appropriate to
afford leniency to Haakenstad, who is pro se. Haakenstad has
shown that he misunderstood the court procedures and states
that he has no means to file a new petition on his own; under
these circumstances, he should not be deprived of his
opportunity to litigate his habeas petition on the merits.
The court will direct the clerk's office to open a new
case with Haakenstad's petition, Dkt. 1, and his brief in
support of his habeas petition, Dkt. 2. I will also direct
the clerk's office to send a copy of this order to
Haakenstad's last known address. Haakenstad should pay
his five dollar filing fee as soon as possible once he
receives a copy of this order.
leaves the issue of what I should do about his unexhausted
claim. Although I warned him about the potential consequences
of proceeding with his unexhausted claim, it is still unclear
whether he understands the significance of proceeding with
his unexhausted claim, and he still has not told the court
how he wishes to proceed. I will allow him to file a letter
indicating whether he wishes to exhaust state remedies before
proceeding with his habeas petition.
given the limited time remaining on his one-year habeas
deadline, he no longer has the option of dismissing the
entire case and refiling it later. Instead, he would need me
to stay proceedings pending his exhaustion of state remedies.
Under Rhines v. Weber, 544 U.S. 269, 277 (2005),
district courts have discretion to grant a stay for a mixed
petition-one containing both exhausted and unexhausted
claims-where outright dismissal of the petition could
jeopardize the petitioner's ability to later file a
timely habeas petition on the unexhausted claims.
Id. at 275. But the court may grant a stay only if
the petitioner satisfies three requirements: (1) there was
good cause for the petitioner's failure to exhaust his
claims in state court; (2) the unexhausted claims are not
plainly meritless; and (3) the petitioner does not appear to
be engaged in abusive litigation tactics or intentional
delay. Id. at 278. In general, courts have found
that a petitioner's right to federal review is not at
risk when he has at least 60 days remaining on his federal
clock within which to initiate the state court exhaustion
process and return to federal court after completing it.
Crews v. Horn, 360 F.3d 146, 154 (3d Cir. 2004)
(reasoning that the petitioner ought to be able to file an
application for state post conviction relief within 30 days
and return to the federal court within 30 days after state
court exhaustion is completed); Palmer v. Carlton,
276 F.3d 777, 781 (6th Cir. 2002) (same); Zarvela v.
Artuz, 254 F.3d 374, 381 (2d Cir. 2001) (same). But
Haakenstad does not have 60 days.
may file a letter explaining that he has good cause for
failure to exhaust state remedies. It appears that showing
good cause would be difficult to do, given that it appears
that Haakenstad wasted his chance to diligently exhaust state
remedies by absconding. But nonetheless, I will give him a
chance to explain his circumstances. Haakenstad should
explain in his letter whether he did in fact abscond and the
circumstances surrounding his failure to exhaust state
remedies. If Haakenstad does not provide good cause or does
not file a letter requesting a stay, then his habeas petition
will proceed with his unexhausted claim.