United States District Court, E.D. Wisconsin
ORDER GRANTING PETITIONER'S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT., 2), AND
GRANTING PETITIONER'S MOTIONS FOR STAY AND ABEYANCE (DKT.
NOS. 4, 6)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
Joshua Braithwaite filed a petition for writ of habeas
corpus under 28 U.S.C. §2254, challenging his 2014
judgment of conviction in Milwaukee County Circuit Court on
charges of murder, sexual assault and kidnapping. Dkt. No. 1.
On appeal in state court, the petitioner argued that the
trial court erred in denying his motion for a mistrial after
his probation agent revealed to the jury that the petitioner
had a prior sexual offense conviction. State v.
Braithwaite, 2016 WL 7177464, *1 (Wis. Ct. App. Dec. 7,
2016). The Wisconsin Court of Appeals affirmed the conviction
based on the trial court's cautionary instructions,
post-verdict voir dire and assurances from each
juror that the information did not impact their verdicts.
Id. at *3. The Court of Appeals also found
sufficient evidence to support the finding of guilt.
Id. The Wisconsin Supreme Court denied the petition
for review on March 13, 2017. State v. Braithwaite,
374 Wis.2d 161 (2017).
Motion for Leave to Proceed Without Prepayment of the Filing
petitioner filed a motion for leave to proceed without
prepayment of the $5.00 filing fee. Dkt. No. 2. The court has
reviewed the petitioner's affidavit and trust account
statement, and is satisfied that the petitioner does not have
funds available to pay the $5 filing fee. The court will
grant the motion.
Rule 4 Screening and Motions for Stay
of the Rules Governing Section 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." At this stage,
the court reviews the petition and any exhibits to determine
whether the petitioner has stated constitutional or federal
law claims that are cognizable on habeas review,
exhausted in the state court system and not procedurally
petitioner raises three grounds for relief. The first issue
he raises- whether the trial court erroneously exercised its
discretion when denying his motion for a mistrial after the
probation agent revealed his prior adjudication for a sexual
offense-is one that he raised in his state court appeal. In
the §2254 petition, however, he frames the issue as a
violation of his right to a fair trial. It is not clear
whether that is the way he presented the issue to the
state courts. See State v. Braithwaite,
2016 WL 7177464 at *1. The other two grounds he raises here
are whether he had notice of the investigation or the charges
on which he was convicted, and whether officers coerced him
into making an involuntary self-incriminating statement using
"trickery" and misconduct. Dkt. No. 1 at 7-8. He
concedes that he did not raise the last two grounds in state
court, explaining that his post-conviction counsel was
October 10, 2017, the court received from the petitioner a
motion, asking the court to stay the federal habeas
proceedings while he exhausted his state court remedies. Dkt.
No. 4. Specifically, he indicated that he was pursuing a
Wis.Stat. §974.06 petition regarding his allegation that
his postconviction counsel was ineffective. Id.
October 13, 2017, the court received a second motion from the
petitioner, again asking the court to stay the federal
habeas proceedings so that he could exhaust his
remedies in state court. Dkt. No. 6.
28 U.S.C. §2254(b)(1)(A), this court cannot grant
habeas relief until a petitioner has first exhausted
his available state court remedies. Generally, courts
consider a claim exhausted if a petitioner presents it
through one "complete round of the State's
established appellate review process." Woodford v.
Ngo, 548 U.S. 81, 92 (2006). If a petitioner presents a
claim in federal court that has not been exhausted in state
court, the federal court has several options-dismiss the
federal case entirely; stay the federal case to let the
petitioner go back to state court to exhaust his remedies; or
allow the petitioner to amend his petition to remove the
unexhausted claims. 28 U.S.C. 82254(b)(1)(A); see also
Rhines v. Weber, 544 U.S. 269, 278 (2005). For that
reason, the Supreme Court has "instructed prisoners who
are unsure about whether they have properly exhausted state
remedies, to file a 'protective' petition in federal
court and ask the federal court to stay and abey the federal
habeas proceedings until state remedies are exhausted."
Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir.
2008) (quoting Pace v. DiGuglielmo, 544 U.S. 408,
416 (2005)). "[W]henever good cause is shown and the
claims are not plainly meritless, stay and abeyance is the
preferred course of action." Id.
construing the allegations, the court finds that the
petitioner has alleged colorable constitutional violations of
the Fifth, Sixth and Fourteenth Amendments, and that he has
shown good cause for failing to raise these arguments in
state court. Nothing in the record suggests that the
petitioner is bringing these claims to delay the litigation.
The court will grant the petitioner's motion to stay and
hold this case in abeyance while the petitioner returns to
state court to exhaust his claims.
court GRANTS the petitioner's motion for
leave to proceed without the prepayment of the filing fee.
Dkt. No. 2.
court GRANTS petitioner's motions to
stay and hold this ...