United States District Court, E.D. Wisconsin
JEFFREY F. EVERS, Petitioner,
BRIAN FOSTER, Respondent.
STADTMUELLER U.S. DISTRICT JUDGE.
Court began the screening process for Petitioner Jeffery F.
Evers' (“Evers”) petition on September 8,
2017. (Docket #7). Because Evers failed to exhaust his state
court remedies for one of his five grounds for relief, the
Court gave him various options to proceed with this action.
Id. at 4-5. Evers chose to withdraw the unexhausted
ground. (Docket #8). Evers may thus proceed on the four
other, exhausted grounds he identified. (Docket #1 at 6-9).
Evers' choice made, the Court can now complete the
screening process. It must next review Evers' petition
under Rule 4 to determine whether he has procedurally
defaulted on any of his claims. Even though a constitutional
claim in a federal habeas petition has been exhausted, the
court is still barred from considering the claim if it has
been procedurally defaulted by the petitioner. See
Mahaffey v. Schomig, 294 F.3d 907, 915 (7th Cir. 2002)
(citing Boerckel v. O'Sullivan, 135 F.3d 1194,
1196-97 (7th Cir. 1998), rev'd on other grounds by
O'Sullivan v. Boerckel, 526 U.S. 838, 849 (1999)). A
state prisoner procedurally defaults on a constitutional
claim in a habeas petition when he fails to raise the claim
in the state's highest court in a timely fashion or in
the manner prescribed by state law. See
O'Sullivan, 526 U.S. at 848; Thomas v.
McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000). Here, on
the record before the Court, it appears that Evers has not
procedurally defaulted on his claims.
Court concludes its Rule 4 review by screening for patently
frivolous and speculative claims in Evers' federal habeas
petition. See Ray v. Clements, 700 F.3d 993, 996 n.1
(2012) (citing Small v. Endicott, 998 F.2d 411, 414
(7th Cir. 1993), for the proposition that district courts may
dismiss petitions that fail to state a claim or are factually
frivolous). Evers' claims are not patently frivolous and
may state claims upon which relief could be granted; if
proven, Evers' claims will show that his conviction was
unconstitutional and that he is therefore entitled to habeas
relief. Thus, the claim is not so plainly without merit as to
warrant dismissal at this stage.
it does not plainly appear that Evers' claims are
frivolous or speculative, the Court will direct the
respondent to respond to Evers' claims in the petition.
IT IS ORDERED that the parties shall proceed
in accordance with the following schedule:
Within thirty (30) days of entry of this order, the
respondent shall file either an appropriate motion seeking
dismissal of this action or answer the petition, complying
with Rule 5 of the Rules Governing § 2254 Cases, and
showing cause, if any, why the writ should not issue; and 2.
If the respondent files an answer, then the parties should
abide by the following briefing schedule:
a. The petitioner shall have sixty (60) days after the filing
of the respondent's answer within which to file a brief
in support of his petition, providing reasons why the writ of
habeas corpus should be issued. The petitioner is reminded
that, in accordance with 28 U.S.C. § 2248, unless he
disputes allegations made by the respondent in his answer or
motion to dismiss, those allegations “shall be accepted
as true except to the extent that the judge finds from the
evidence that they are not true.”
b. The respondent shall file an opposition brief, with
reasons why the writ of habeas corpus should not be issued,
within sixty (60) days of service of petitioner's brief,
or within one hundred twenty (120) days from the date of this
order if no brief is filed by petitioner.
c. The petitioner may then file a reply brief, if he wishes
to do so, within thirty (30) days after the respondent has
filed a response brief.
the respondent files a motion in lieu of an answer, then the
parties should abide by the following briefing schedule:
a. The petitioner shall have thirty (30) days following the
filing of respondent's dispositive motion and
accompanying brief within which to file a brief in opposition
to that motion.
b. The respondent shall have fifteen (15) days following the
filing of petitioner's opposition brief within which to
file a reply brief, if any.
to Civil L. R. 7(f), the following page limitations apply:
briefs in support of or in opposition to the habeas petition
or a dispositive motion filed by respondent must not exceed
thirty pages and reply briefs must not exceed fifteen pages,
not counting any ...