United States District Court, E.D. Wisconsin
JEFFREY F. EVERS, Petitioner,
BRIAN FOSTER, Respondent.
STADTMUELLER U.S. DISTRICT JUDGE.
August 22, 2017, Petitioner Jeffrey Evers
(“Evers”) filed this petition pursuant to 28
U.S.C. § 2254, asserting that his state court conviction
and sentence were imposed in violation of the Constitution.
(Docket #1). After proceeding to trial in Milwaukee County
Circuit Court in August 2014, Evers was convicted of
kidnapping and first-degree sexual assault with use of a
dangerous weapon. Id. at 2. On September 30, 2014,
he was sentenced to twenty years' imprisonment to be
followed by ten years of supervised release. Id.
Evers appealed his conviction beginning in April 2015 but it
was upheld at each level of the Wisconsin court system.
Id. at 3.
of the Rules Governing § 2254 Cases in the United States
District Courts authorizes a district court to conduct an
initial screening of habeas corpus petitions and to dismiss a
petition summarily where “it plainly appears from the
face of the petition…that the petitioner is not
entitled to relief.” This rule provides the district
court the power to dismiss both those petitions that do not
state a claim upon which relief may be granted and those
petitions that are factually frivolous. See Small v.
Endicott, 998 F.2d 411, 414 (7th Cir. 1993). Upon an
initial Rule 4 review of habeas petitions, the court will
analyze whether the petitioner has avoided statute of
limitations bars, exhausted available state remedies, avoided
procedural default, and set forth cognizable constitutional
or federal law claims.
court begins its Rule 4 review by examining the timeliness of
Evers' petition. A state prisoner in custody pursuant to
a state court judgment has one year from the date “the
judgment became final” to seek federal habeas relief.
28 U.S.C. § 2244(d)(1)(A). A judgment becomes final
within the meaning of § 2244(d)(1)(A) when all direct
appeals in the state courts are concluded followed by either
the completion or denial of certiorari proceedings in the
U.S. Supreme Court, or, if certiorari is not sought, at the
expiration of the 90 days allowed for filing for certiorari.
See Ray v. Clements, 700 F.3d 993, 1003 (2012)
(citing Anderson v. Litscher, 281 F.3d 672, 675 (7th
it appears Evers' petition is timely. From the face of
the petition, it appears that Evers' direct appeal
concluded on May 15, 2017, when the Wisconsin Supreme Court
denied his petition for review. (Docket #1 at 3). He did not
file a petition for certiorari to the United States Supreme
Court. Id. at 4. Because the petition in this case
was filed on August 22, 2017, just three months after the end
of Evers' state-level appeals process, it satisfies the
time constraints of Section 2244(d).
court continues its Rule 4 review by examining Evers'
petition to determine whether he has exhausted his state
remedies. The district court may not address the merits of
the constitutional claims raised in a federal habeas petition
“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). Accordingly, a state
prisoner is required to exhaust the remedies available in
state court before a district court will consider the merits
of a federal habeas petition. 28 U.S.C. § 2254(b)(1)(A);
Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir.
2001) (if petitioner “either failed to exhaust all
available state remedies or raise all claims before the state
courts, his petition must be denied without considering its
merits.”). A petitioner exhausts his constitutional
claim when he presents it to the highest state court for a
ruling on the merits. Lieberman v. Thomas, 505 F.3d
665, 669 (7th Cir. 2007) (citing Picard v. Connor,
404 U.S. 270, 275 (1971); Perruquet v. Briley, 390
F.3d 505, 513 (7th Cir. 2004)). Once the state's highest
court has had a full and fair opportunity to pass upon 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).
Evers alleges five grounds: 1) ineffective assistance of
trial counsel; 2) that his conviction is based on a coerced
confession; 3) that his conviction rests on a false police
report; 4) that the trial court improperly instructed the
jury in his case; and 5) ineffective assistance of appellate
counsel. (Docket #1 at 6-11). According to the face of the
petition, it appears that Evers presented the first four of
these claims to each level of the Wisconsin courts for
review. See Id. at 3. In the case of Ground Five,
the claim could not arise until Evers' appeal failed, and
the petition concedes that Evers has not filed a
post-conviction motion (such as one pursuant to
Wisconsin's Knight precedent) presenting the
claim. Id. at 4.
federal habeas petition has even a single unexhausted claim,
the district court may be required to dismiss the entire
petition and leave the petitioner with the choice of either
returning to state court to exhaust the claim or amending or
resubmitting the petition to present only exhausted claims.
See Rose v. Lundy, 455 U.S. 509, 510 (1982). Under
Rhines v. Weber, 544 U.S. 269, 278 (2005), the Court
should grant a stay to allow the petitioner to return to
state court to exhaust his claims when “the petitioner
had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally
dilatory litigation tactics.” See also Purvis v.
United States, 662 F.3d 939, 944 (7th Cir. 2011)
(applying Rhines to a mixed petition brought under
28 U.S.C. § 2255). The Court should also allow the
petitioner to amend his petition to remove any unexhausted
claims before dismissing the petition. Rhines, 544
U.S. at 278.
the Court must give Evers a choice. This choice, however,
will depend on the grounds upon which Evers seeks relief.
Either Evers can: (1) dismiss this petition in its entirety
in order to exhaust all his claims in state courts; (2) move
for a stay and abeyance while he returns to state court to
exhaust his unexhausted claim; or (3) elect to proceed on
only the exhausted claims described above. If he dismisses
the unexhausted claim, then the Court will be able to
consider only his exhausted claims.
Evers elects option (2) and wishes to maintain his
unexhausted claim and seek a stay and abeyance, he should
file a separate motion for a stay and abeyance. In that
motion, Evers will need to show that he “had good cause
for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation
tactics.” Rhines, 544 U.S. at 278. If Evers
elects option (3) and wishes to dismiss his unexhausted claim
and proceed only on his exhausted claims, then he should: (a)
file an amended petition which does not include the
unexhausted claim; and (b) file a separate letter telling the
Court that he wishes to proceed only on his exhausted claims.
Finally, if Evers elects option (1) and seeks to dismiss this
action in its entirety so that he may exhaust his claims in
the state court, he may notify the Court of that decision by
letter. The Court hereby warns Evers that, if he proceeds
only on the exhausted claims, he may not be able to proceed
on his other claim(s) in a second or successive petition.
See 28 U.S.C. § 2244(b)(2).
course of action Evers elects to take, the Court will require
him to file his amended petition, motion, or letter as
described herein within thirty (30) days of
the entry of this Order. Finally, the Court notes that Evers
has filed a motion for leave to proceed in forma
pauperis. (Docket #2). His trust account statement shows
that he regularly receives deposits into his account which
are substantially more than the $5.00 filing fee in this
case. (Docket #3). Much of those funds are spent on visits to
the prison canteen. Id. The Court will, therefore,
deny his motion for leave to proceed in forma
pauperis and require that the $5.00 filing fee be paid,
also within thirty (30) days. See
28 U.S.C. §§ 1914(a), 1915(a).
IT IS ORDERED that, within thirty
(30) days of the entry of this Order, Petitioner
shall: (1) file a letter seeking dismissal of this action in
its entirety while he exhausts his claims in state court; (2)
move for a stay and abeyance of this action while he exhausts
his claims in state court; or (3) file a letter indicating
that he wishes to proceed only on his exhausted claims and
file an amended petition that does not include the
IS FURTHER ORDERED that Petitioner's motion for
leave to proceed in forma pauperis (Docket #2) be
and the same is hereby DENIED; and
IS FURTHER ORDERED that Petitioner shall pay the
$5.00 filing fee for this action within thirty ...