United States District Court, E.D. Wisconsin
TERRY S. SHANNON, Petitioner,
WILLIAM J. POLLARD, Respondent.
Stadtmueller, U.S. District Judge
three years ago, this Court granted Petitioner's motion
for a stay and abeyance to permit him to exhaust his
state-court remedies with respect to his claims raised in
this habeas case. (Docket #9). Petitioner pursued exhaustion
of his claims in the state courts and offered periodic status
updates at the Court's behest. See (Docket #11,
#13, #15, #17, #19, #21). As the Court noted only last week,
it appears that Petitioner's efforts at exhaustion have
been completed. Publically available state court records
reveal that the Wisconsin Court of Appeals affirmed the
denial of his motion for post-conviction relief in December
2016, and the Wisconsin Supreme Court denied Petitioner's
petition for review in April 2017.
failed to file additional status updates as required by the
Court, see (Docket #23), and facing the prospect of
finally having to move forward on his claims, Petitioner
offers a new justification to continue the stay and abeyance
procedure in this case: the pendency of his
co-defendant's motion for post-conviction relief in
Wisconsin state court. (Docket #24). His co-defendant (and
brother) is operating with the assistance of counsel, and
counsel filed a new motion for post-conviction relief on
August 25, 2017. (Docket #24-1). In the motion, counsel
argues that new evidence shows that the Shannon brothers
acted in self-defense during the gun battle that resulted in
the death of Bennie Smith (“Smith”) and the
Shannons' convictions. Id. at 3. Specifically,
one of the alleged victims recently told a fellow prison
inmate that it was he who accidentally shot Smith first
(though his bullet did not kill Smith) and that he and his
cohorts started shooting before the Shannons returned fire.
Id. In fact, this purported victim laughed that the
Shannons were being held responsible for a killing they did
not commit. Id.
motion must be denied. Stay and abeyance exists to permit a
petitioner to exhaust his state-court remedies as to claims
asserted in his petition. Rhines v. Weber, 544 U.S.
269, 271 (2005). It does not exist to permit endless delay of
the day of judgment on the hope that some favorable evidence
may reveal itself. Petitioner's own claims having been
fully exhausted, there is no longer any viable basis to
invoke the stay-and-abeyance procedure.
even if the Court construed Petitioner's motion as one
seeking leave to amend his petition to add his brother's
new claim as one of his own, see Fed. R. Civ. P.
15(a), the Court would nevertheless deny the request to stay
and abey during exhaustion of that claim. A district
court's decision to permit or deny this procedure is
cabined only by its sound discretion. See Rhines,
544 U.S. at 278. Normally, courts consider whether the
petitioner had good cause for his failure to exhaust the
claim in question, whether the unexhausted claim is
potentially meritorious, and whether the petitioner engaged
in intentionally dilatory litigation tactics. Id.
these factors militate for or against a stay, the Court must
in this case return to the central teaching of
Rhines-namely, that the availability of stay and
abeyance “should be available only in limited
circumstances.” Id. The Court observed that
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) displays Congress'
“timeliness concerns” with habeas petitions,
including the need to promote finality of state-court
judgments. Id. at 276-77. In the end, even a mixed
petition “should not be stayed indefinitely.”
Id. at 277. Thus, despite indications that stay and
abeyance would be proper in this case, the Court is obliged
to conclude, quite simply, that too much time has passed.
This case is far older than any on the Court's docket,
and it is time the case is brought to conclusion. As a
result, the motion for continued stay and abeyance-and the
implied request to amend the petition-will be denied.
the stay and abeyance has been completed, the Court must now
screen Petitioner's claims under Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts. That Rule 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). Under Rule 4, the Court
analyzes preliminary obstacles to review, such as whether the
petitioner has complied with the statute of limitations,
exhausted available state remedies, avoided procedural
default, and set forth cognizable claims.
the Court can turn to screening Petitioner's asserted
grounds for relief, however, he must file with the Court the
decisions of the Wisconsin trial and appellate courts on his
motion for post-conviction relief that he employed to exhaust
the instant claims. Without those opinions, the Court cannot
conclude that Petitioner has avoided procedural default or
exhausted his state remedies as to all of his asserted
grounds for relief. This is because Petitioner concedes in
his petition that his direct appeal touched on only two
narrow issues: (1) did the State violate Brady v.
Maryland, 373 U.S. 83 (1963), when it failed to disclose
the medical examiner's report about the origin of the
fatal shot that killed Smith; and (2) should other-acts
evidence introduced at trial have been excluded. (Docket #1
at 3). His asserted grounds for habeas relief are far
broader. See Id. at 6-9. Thus, if the Court
considered the petition only on its face, it would be forced
to conclude that procedural default and failure to exhaust
barred most of those grounds. Indeed, this is precisely why
Petitioner sought and was granted a stay and abeyance-to have
an opportunity to present these new claims to the Wisconsin
satisfy the Court that he has indeed presented his claims to
the Wisconsin courts during the stay and abeyance, the Court
must review the decisions on his post-conviction motion.
Petitioner bears the burden on matters such as procedural
default and exhaustion, see Mahaffey v. Schomig, 294
F.3d 907, 914-15 (7th Cir. 2002), and without providing the
relevant state-court decisions, he cannot meet that burden.
Consequently, the Court will direct Petitioner to file those
decisions within twenty-one (21) days of the date of this
Order or face dismissal.
IT IS ORDERED that Petitioner's motion
to continue stay and abeyance (Docket #24) be and the same is
hereby DENIED; and
IS FURTHER ORDERED that, within twenty-one
(21) days of the date of this Order, Petitioner
shall file copies of all of the decisions of the Wisconsin
courts relating to his post-conviction ...