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.

Tyree v. EcKstein

United States District Court, E.D. Wisconsin

December 19, 2016

TIMOTHY E. TYREE, Petitioner,
v.
SCOTT ECKSTEIN, Respondent.

          ORDER SCREENING §2254 HABEAS CORPUS PETITION (DKT. NO. 1) AND ORDERING THE RESPONDENT TO ANSWER OR OTHERWISE RESPOND

          HON. PAMELA PEPPER United States District Judge

         Timothy E. Tyree, who is represented, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. Dkt. No. 1. He has paid the $5.00 filing fee. The case now is before the court for screening pursuant to Rule 4 of the Rules Governing §2254 Proceedings.

         I. BACKGROUND

         On January 3, 2013, the petitioner was convicted in Milwaukee County Circuit Court of first-degree reckless homicide. Dkt. No. 1 at 2. He received a sentence of twenty-seven years of initial confinement and thirteen years of extended supervision, for a total of forty years. Id. The petitioner pursued post-conviction relief through the Wisconsin state courts. Id. at 3. In an opinion dated May 12, 2015, the state appellate court affirmed the trial court's decision and judgment of conviction. Dkt. No. 1-2. The Wisconsin Supreme Court denied the petitioner's petition for review in an order dated September 9, 2015. Dkt. No. 1-3.

         Subsequently, the petitioner filed this federal habeas petition. The petitioner alleges that his conviction, sentence and confinement are unlawful because they were obtained in violation of his Fifth, Sixth and Fourteenth Amendment rights. Dkt. No. 2 at 1. He asserts that his constitutional rights were violated when his trial counsel failed to file a pretrial motion to suppress an unfair line-up (which took place before the petitioner was charged), and failed to object to the line-up-related testimony during trial. Id. at 1-2.

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

         The court now will review, or “screen” the petition. Rule 4 of the Rules Governing §2254 Proceedings states:

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 . . . .

         Essentially, a court must allow a habeas petition to proceed unless it is clear to the court that the petitioner is not entitled to relief in the district court.

         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 this case, the petitioner's Fifth, Sixth and Fourteenth Amendment claims are generally cognizable on habeas review. The court will allow the petitioner's habeas case to proceed.

         III. CONCLUSION

         The court ORDERS that the petitioner may proceed on the claims in his habeas petition. Dkt. No. 1.

         The court ORDERS that within sixty (60) days of the date of this order, the respondent shall ANSWER OR OTHERWISE RESPOND to the petition, complying with Rule 5 of the Rules Governing §2254 Cases, and showing cause why the writ should not issue.

         The court ORDERS that the parties must comply with the following schedule for filing briefs on the ...


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.