United States District Court, E.D. Wisconsin
TIMOTHY E. TYREE, Petitioner,
SCOTT ECKSTEIN, Respondent.
ORDER SCREENING §2254 HABEAS CORPUS PETITION
(DKT. NO. 1) AND ORDERING THE RESPONDENT TO ANSWER OR
PAMELA PEPPER United States District Judge
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.
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.
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.
THE PETITIONER MAY PROCEED ON THE CLAIMS IN HIS
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 . . . .
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.
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
court ORDERS that the petitioner may proceed on the claims in
his habeas petition. Dkt. No. 1.
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
court ORDERS that the parties must comply with the following
schedule for filing briefs on the ...