United States District Court, E.D. Wisconsin
CHAD A. STITES, Petitioner,
DALE SCHMIDT, Respondent.
REPORT AND RECOMMENDATION
WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE.
Stites is in the custody of the Dodge County Sheriff awaiting
trial on a felony charge of fifth offense drunk driving. He
has been in custody since June 2, 2016 in lieu of $50, 000
cash bond. On May 26, 2017 he demanded a speedy trial under
Wis.Stat. § 971.10. Because he made the demand
personally, rather than through the attorney who was
representing him, the court deemed the demand ineffective.
(ECF No. 1-1 at 11.) In any event, a trial was then scheduled
for July 19, 2017, which was well within the 90 days allotted
under the statute. (ECF No. 1-1 at 11.)
7, 2017, Stites's attorney requested a continuance. The
court granted the motion and reset the trial for October 4,
2017. (ECF No. 1-1 at 11.) Stites discharged his attorney on
September 8, 2017 and elected to proceed pro se. (ECF No. 1-1
at 11.) Stites demanded a speedy trial and the court noted a
trial was already set for October 4, 2017. (ECF No. 1-1 at
11.) However, because of court congestion it was unlikely
that the matter would be heard on that date. Therefore, the
court set November 7, 2017 as a backup trial date. (ECF No.
1-1 at 11-12.)
September 27, 2017, Stites filed a petition for a writ of
habeas corpus in this court. He asks that he be released from
custody without bail.
accordance with Rule 1(b) of the Rules Governing Section 2254
Cases and Civil L.R. 9(a)(2), the court applies the Rules
Governing Section 2254 cases to petitions for a writ of
habeas corpus under 28 U.S.C. § 2241. The court must now
screen the petition in accordance with Rule 4 of the Rules
Governing Section 2254 Cases, which states:
If it plainly appears from 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, or to
take other action the judge may order.
habeas corpus relief does not lie for errors of state
law.” Lechner v. Frank, 341 F.3d 635, 642 (7th
Cir. 2003) (citing Lewis v. Jeffers, 497 U.S. 764,
780 (1990)); Tatum v. Meisner, No. 13-C-1348, 2014
U.S. Dist. LEXIS 134528, at *3 (E.D. Wis. Sep. 24, 2014)
(discussing Wis.Stat. § 971.10); Franklin v.
Bartow, No. 09-CV-664, 2009 U.S. Dist. LEXIS 118040, at
*11 (E.D. Wis. Dec. 18, 2009) (same); see also Roth v.
Lundell, No. 05-C-148-C, 2005 U.S. Dist. LEXIS 8195, at
*12 (W.D. Wis. May 4, 2005) (noting that a violation of
Wis.Stat. § 971.10 would not state a claim under 42
U.S.C. § 1983). Even if Stites could show that the Dodge
County Circuit Court failed to comply with Wisconsin's
speedy trial statute, it would not entitle him to federal
habeas corpus relief.
the Sixth Amendment of the U.S. Constitution separately
guarantees the right to a speedy trial, and violations of
this constitutional right might merit federal habeas relief.
Barker v. Wingo, 407 U.S. 514, 530 (1972). Thus, a
person in state custody may turn to a federal court under
section 2241 to demand that the state provide him with the
speedy trial he is constitutionally guaranteed. Braden v.
30th Judicial Circuit Court, 410 U.S. 484, 490-91
(1973); Sweeney v. Bartow, 612 F.3d 571, 573 (7th
Cir. 2010). If the petitioner seeks only release from state
custody, as opposed to dismissal of the charges, he does not
need to exhaust his remedies in state court before turning to
federal court. Graf v. Clarke, No. 14-C-1205, 2014
U.S. Dist. LEXIS 149218, at *3 (E.D. Wis. Oct. 20, 2014);
see also Powell v. Saddler, No. 12 C 2928, 2012 U.S.
Dist. LEXIS 126671, at *18 (N.D. Ill. Sep. 6, 2012) (noting
that abstention is required if the petition seeks to enjoin
state court proceedings due to a speedy trial violation, but
abstention is not required “where a petitioner seeks to
enforce his right to a speedy trial by having a federal court
order that a trial take place”); Hirsch v.
Smitley, 66 F.Supp.2d 985, 987 (E.D. Wis. 1999)
(“Speedy trial considerations can also be a basis for
such relief, but only where the petitioner is seeking to
force a trial; they are not a basis for dismissing a pending
state criminal charge outright.”).
seeks only release from custody. Therefore, total exhaustion
of his state remedies is not required. However, the court
finds that interests of federalism and comity require that
Stites at least first assert his constitutional claim in
state court prior to turning to federal court. Based on the
court's review of the state court filings that Stites has
provided, Stites asserted such a constitutional right, at
best, obliquely. The only such reference the court has
identified is a sentence in a document titled “Motion
for Speedy Trial Release Pursuant to Wis.Stat.
971.10(4)” that Stites apparently filed in the state
court action on August 31, 2017. (ECF No. 1-1 at 9-10.) It
states, “Attorney Mayer, without consultation with
petitioner, sought a continuance, never informing petitioner,
this action might abridge previously established 5th and 6th
Amendment Rights, to a Speedy Trial release pursuant to
Wis.Stat. 971.10' (4) provision; to be released on Zero
Bail, pending Trial.” (ECF No. 1-1 at 9.) His speedy
trial claims in state court otherwise relate only to his
rights under Wisconsin law.
significant questions of whether Stites ever presented his
constitutional claim to the state court, Stites has failed to
present a plausible claim that his constitutional right to a
speedy trial was violated.
various “affidavits” that Stites submitted
following his petition, Stites complains about the actions of
his prior attorneys, asserts that he has “no duty to
bring myself to trial” but rather the state must ensure
a speedy trial, and complains of various other problems
occasioned by the delay in his trial. (ECF Nos. 4, 5, 6.)
right to [a] speedy trial is a more vague concept than other
procedural rights. It is, for example, impossible to
determine with precision when the right has been
denied.” Barker, 407 U.S. at 521. “The
right of a speedy trial is necessarily relative. It is
consistent with delays and depends upon circumstances. It
secures rights to a defendant. It does not preclude the
rights of public justice.” Id. (quoting
Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573,
49 L.Ed. 950 (1905)).
a defendant does not waive his right to a speedy trial simply
because he failed to assert the right, “[t]his does not
mean … that the defendant has no responsibility to
assert his right.” Barker, 407 U.S. at 528.
Whether a defendant's right to a speedy trial was
violated requires a balancing of various factors. “The
length of the delay is to some extent a triggering mechanism.
Until there is some delay which is presumptively prejudicial,
there is no necessity for inquiry into the other factors that
go into the balance.” Id. at 530.
“Closely related to length of delay is the reason the
government assigns to justify the delay.” Id.
at 531. Third, the court considers “[w]hether and how
the defendant asserts his right” to a speedy trial.
Id. “A fourth factor is prejudice to the
defendant.” Id. at 532. “The time spent
in jail awaiting trial has a detrimental impact on the
individual. It often means loss of a job; it disrupts family
life; and it enforces idleness.” Id.
court has reviewed the publicly available records of the
state court proceedings to which Stites refers in his
petition. See Wisconsin v. Stites, Dodge Cnty. Cir.
Ct. No. 2016CF179, available at
https://wcca.wicourts.gov. The delays appear to have
started with a July 26, 2016 stipulation to extend the
deadline for filing pretrial motions. The court subsequently
extended the deadline to September 15, 2016. On that date
Stites filed a motion to suppress and a motion to dismiss. ...