United States District Court, E.D. Wisconsin
STEVEN D. HOPGOOD, Petitioner,
REED RICHARDSON, Respondent.
ORDER ON THE PETITION FOR A WRIT OF HABEAS
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
D. Hopgood is incarcerated at Stanley Correctional
Institution, having been convicted in Green Lake County for
felony murder. On September 22, 2017, he filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(ECF No. 1.) Accompanying his petition were a motion asking
that the court stay these proceedings and hold the petition
in abeyance to permit him to exhaust his remedies in state
court (ECF No. 2), a motion for an evidentiary hearing (ECF
No. 4), and a motion to appoint counsel. (ECF No. 5.)
was convicted following a four-day jury trial in December
2012. The court sentenced him on March 15, 2013. Hopgood
appealed. He argued that (1) his trial counsel provided
ineffective assistance; (2) the state failed to disclose
material exculpatory evidence in time for use at trial; (3)
newly discovered exculpatory evidence warranted a new trial;
(4) the circuit court erroneously exercised its discretion in
denying two mistrial motions, each based on improper
statements by a prosecutor, and (5) a new trial should be
granted in the interest of justice. The court of appeals
affirmed his conviction on June 2, 2016. See Wis.
Appeal No. 2014AP002742. The Wisconsin Supreme Court denied
review on September 22, 2016.
now seeks habeas relief on multiple grounds. One of the
grounds upon which he seeks habeas relief states a claim that
he exhausted in state court; the others do not. And some of
the claims were never presented to any state court, for which
he seeks a stay and abeyance.
he contends that he was denied effective assistance of
counsel as a result of his trial counsel's failure to
present evidence of a detective's misconduct in his and
other cases. This claim was exhausted in state court. (ECF
No. 1 at 7.)
raises a number of other claims that were presented to the
trial court and to the Wisconsin Court of Appeals but not to
the Wisconsin Supreme Court. Specifically, Hopgood asserts
that his trial counsel was ineffective for six additional
reasons. He also contends that the trial court failed to
grant a mistrial after the State vouched for another
witness's credibility in violation of Hopgood's 14th
Amendment due process rights. He further contends that the
state failed to provide to the defense prior to trial
evidence of the same detective requesting the reward funds
offered by the victim's family.
Hopgood asserts several grounds for relief that were not
presented to any of the state courts: trial counsel failed to
investigate an alibi witness demonstrating that Hopgood could
not have been at the scene of the crime; trial counsel failed
to investigate the State's chief and only witness who
placed Hopgood at the scene of the crime; trial counsel
failed to properly move the court to sever the
defendants' trials and the court errantly allowed a joint
trial; and appellate counsel failed to raise all meritorious
issues presented on appeal to the Wisconsin Supreme Court.
the court would dismiss a habeas petition containing
unexhausted claims and instruct the petitioner to return to
federal court only after exhausting his state court remedies.
But there is a one-year statute of limitations for filing a
federal habeas petition. 28 U.S.C. § 2244(d)(1). If the
court were to dismiss Hopgood's habeas petition, the
statute of limitations might bar refiling the petition,
preventing Hopgood from seeking federal habeas relief.
conviction became final and the one-year clock began ticking
on December 22, 2016, when the deadline for Hopgood seeking
review of his conviction by the United States Supreme Court
passed. See 28 U.S.C. § 2244(d)(1)(A); Ray
v. Clements, 700 F.3d 993, 1003 (7th Cir. 2012) (citing
Anderson v. Litscher, 281 F.3d 672, 674-75 (7th Cir.
2002)); Sup. Ct. R. 13. Hopgood had one year from that date
in which to file his habeas petition. His petition was timely
filed on September 22, 2017.
said that, if the court were to dismiss Hopgood's
petition so that he can pursue the unexhausted claims in
state court, once those claims are exhausted he likely will
have very little time to refile his habeas petition in
federal court. The one-year clock does not stop running with
the filing of the federal habeas petition. Only “[t]he
time during which a properly filed application for State
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward [the one-year statute of limitations].”
28 U.S.C. § 2244(d)(2).
the stay and abeyance procedure approved by the Supreme Court
in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528,
161 L.Ed.2d 440 (2005), the district court may stay the
federal habeas proceedings and hold the petition in abeyance
while the petitioner exhausts his remedies in state court.
This preserves the petitioner's ability to seek habeas
relief but affords the state courts the first opportunity to
remedy any constitutional errors in the petitioner's
conviction. But because the stay and abeyance procedure would
undermine the finality and expediency that Congress sought
when it passed the Antiterrorism and Effective Death Penalty
Act, “stay and abeyance should be available only in
limited circumstances.” Rhines, 544 U.S. at
277. “[S]tay and abeyance is only appropriate when the
district court determines there was good cause for the
petitioner's failure to exhaust his claims first in state
court.” Id. Moreover, the claims must be
plausibly meritorious. Id.
is no federal constitutional right to the effective
assistance of counsel in a discretionary appeal such as
Hopgood's petition for review to the Wisconsin Supreme
Court. The constitutional right to counsel is guaranteed to a
defendant only for trial and for the first appeal as of
right. Ross v. Moffitt, 417 U.S. 600, 610-12 (1974).
The Wisconsin Supreme Court has recognized a criminal
defendant's right to counsel, including for the filing of
a petition for review as a matter of statutory as
opposed to constitutional law. See State v.
Mosley, 102 Wis.2d 636, 662-68, 307 N.W.2d 200, 215-17
(1981) (discussing Moffitt, 417 U.S. 600). “A
claim of ineffective assistance of postconviction counsel
should be raised in the trial court either by a petition for
habeas corpus or a motion under § 974.06.”
State ex rel. Rothering v. McCaughtry, 205 Wis.2d
675, 681, 556 N.W.2d 136 (1996).
Hopgood may be able to use ineffective assistance of
appellate counsel to avoid procedural default. Generally,
before turning to a federal court for relief by way of a
petition for a writ of habeas corpus under 28 U.S.C. §
2254 a person convicted in state court must first exhaust the
remedies available to him in state court. 28 U.S.C. §
2254(b)(1)(A), (C). To satisfy the exhaustion requirement the
prisoner must fairly present his claim in each appropriate
state court, including a state supreme court with powers of
discretionary review. Baldwin v. Reese, 541 U.S. 27,
29 (2004). Where the petitioner has pursued state remedies,
and there is no longer state corrective process available,
the bar to federal habeas relief is not exhaustion but
procedural default. Bolton v. Akpore, 730 F.3d 685,
696 (7th Cir. 2013). In certain circumstances, counsel's
ineffectiveness in failing to properly preserve a claim for
review might suffice to constitute “cause” that
excuses a procedural default. Edwards v. Carpenter,
529 U.S. 446, 451 (2000) (citing Murray v. Carrier,
477 U.S. 478, 488-89 (1986)).
explains that with the assistance of law clerks he has
identified additional potentially meritorious issues which
were not raised at the trial, appellate, or supreme court
levels. He states that the basis for the delay in fully
exhausting all of his state court remedies, leading to the
one-year statute of limitations likely barring refiling a
habeas petition after exhaustion, is that he has not yet
received the full working files from counsel and his access
to the law library and legal assistance is limited to four
hours per week. Because timeliness, exhaustion, and
procedural default are affirmative defenses that the
respondent may waive, see Wood v. Milyard, 566 U.S.
463, 474 (2012) (addressing waiver of timeliness defense) and
28 U.S.C. § 2254(b)(3), and which petitioners may evade
under certain circumstances, see, e.g., Edwards, 529
U.S. at 451; Schlup v. Delo, 513 U.S. 298, 314-15