United States District Court, E.D. Wisconsin
ROBERT L. TATUM, Petitioner,
WARDEN SCOTT ECKSTEIN, Respondent.
ORDER DENYING PETITIONER'S MOTION FOR ORDER TO
ISSUE RULING ON JURISDICTION (DKT. NO. 65), DENYING
PETITIONER'S MOTION FOR ORDER FOR RELEASE (DKT. NO. 66),
AND ORDERING CLERK'S OFFICE TO CLOSE CASE
PEPPER United States District Judge
March of this year, the Seventh Circuit Court of Appeals
reversed and remanded this court's order denying the
petitioner's request for a writ of habeas
corpus. Dkt. No. 57. The appellate court ordered this
court to issue the writ if, within ninety days of its
decision, the state did not take steps to retry the
petitioner. Id. Seventy-four days later, the Seventh
Circuit recalled the mandate, and stayed the case pending the
United States Supreme Court's disposition of the
respondent's petition for writ of certiorari.
Dkt. No. 58. The United States Supreme Court recently denied
the petition for writ of certiorari, and the Seventh
Circuit has re-issued its mandate. Dkt. No. 67.
the petitioner has filed two motions-a motion asking this
court to make a ruling on jurisdiction, dkt. no. 65, and a
motion for an order releasing him, dkt. no. 66. Because the
case has returned to this court, the court will rule on-and
deny-both of those motions.
September 24, 2014, Judge Rudolph T. Randa issued an order
denying the petitioner's motion for writ of habeas
corpus and declining to issue a certificate of
appealability. Dkt. No. 25. Judgment entered that same day
(dkt. no. 26), and the petitioner filed a timely notice of
appeal. Dkt. No. 28. Almost two and a half years later, the
Seventh Circuit Court of Appeals decided that the Wisconsin
courts unreasonably applied Faretta v. California,
422 U.S. 806 (1975) when they refused to allow the petitioner
to represent himself. The Seventh Circuit reversed Judge
Randa's decision, and remanded to this court with
directions that, unless the respondent initiated steps to
give the petitioner a new trial within ninety days of
issuance of the mandate, this court must issue the writ of
habeas corpus, . Tatum v. Foster, 847 F.3d
459, 469 (7th Cir. 2017). The mandate issued on March 9,
2017. Dkt. No. 57.
respondent, however, decided to petition the United States
Supreme Court for certiorari, and in May of 2017, he
filed a motion to recall the mandate and to stay the mandate
pending certiorari review in the United States
Supreme Court. The respondent indicated that he intended to
file a petition for writ of certiorari, and that the
state “fully intend[ed] to retry Mr. Tatum for double
homicide if the Supreme Court denies
certiorari.” Tatum v. Foster, Appeal
No. 14-3443, Dkt. No. 86 at 2. The Seventh Circuit granted
that motion, and recalled and stayed the mandate pending the
final disposition of the petition before the Supreme Court.
The order expressly stated that the stay would remain in
place pending the Supreme Court's decision. Id.
at Dkt. No. 87.
time later, the petitioner asked the Seventh Circuit to
release him pending that review. Dkt. No. 60. The Seventh
Circuit denied that request in an order that included the
This court has stayed its mandate, and the ninety-day period
during which the state must initiate steps to retry or
release the appellant has not expired. Nor has the time under
the Speedy Trial Act begun to run, as the appellant argues.
Even though we have ordered the appellant released if the
state does not initiate steps to give him a new trial within
ninety days, there are compelling reasons to deny release
pending review of our decision. See Fed. R. App. P. 23(c).
The state has represented that it intends to retry the
appellant for double homicide if the United States Supreme
Court denies certiorari or affirms this court's
decision after granting certiorari, the appellant
had been sentenced to life in prison without the possibility
of release, and our decision was based on the unreasonable
application of Faretta v. California, 422 U.S. 806
Id. at Dkt. No. 94.
October 16, 2017, the United States Supreme Court denied the
petition for writ of certiorari. Id. at
Dkt. No. 95. The electronic docket (available on the Seventh
Circuit website) indicates that the mandate issued the next
day. Id. at Dkt. No. 96. The notice of issuance of
mandate, which is on the Seventh Circuit website, states,
“Herewith is the mandate of this court in this appeal,
along with the Bill of Costs, if any. A certified copy of the
opinion/order of the court and judgment, if any, and any
direction as to costs shall constitute the mandate.”
Id. at Dkt. No. 96. The next docket entry on the
Seventh Circuit docket states, “FOR COURT USE ONLY:
Certified copies of the 01/31/2017 Opinion and Judgment,
3/1/17 Rehearing Denial Order, 5/22/17 Order Recalling and
Staying Mandate pending disposition of Writ of Certiorari,
10/16/17 Supreme Court Order Denying Writ of Certiorari with
10/17/17 Mandate sent to the District Court Clerk.”
inadvertence or clerical error, though, this court did not
receive notice that the mandate had issued, nor did it
receive a copy of the mandate. The court did not discover
that the mandate had issued until the week of November 13,
2017-that is why it only now is ruling on the
the Milwaukee County Circuit Court docket in the underlying
felony case shows that on October 25, 2017, the Milwaukee
County Circuit Court clerk's office converted the
petitioner's paper case file to an electronic filing
case. State v. Tatum, Milwaukee County Case No.
2010CF002660, available at http://wcca.wicourts.gov,
Dkt. No. 17. On that same date, the clerk's office
scheduled the petitioner for a hearing on November 13, 2017;
the docket entry says, “State will produce defendant
for the hearing.” Id. at Dkt. No. 15. The
petitioner clearly was aware that the state had taken steps
to get him back into state court, because on November 1,
2017, he filed a motion to audio-record any hearings in the
case, id. at dkt. no. 11, and a motion for dismissal
based on lack of subject-matter jurisdiction, id. at
dkt. no. 10. The state court denied the motion for audio
recording on November 3, 2017. Id. at Dkt. No. 8.
November 13, 2017, the defendant appeared in Milwaukee County
Circuit court before Judge Mark Sanders. Id. at Dkt.
No. 6. At that hearing, the state-court judge vacated the
2011 judgment of conviction, and addressed the question of
bail. The defendant made a Speedy Trial demand, but refused
the offer of a public defender to represent him, stating that
he wanted to represent himself. Id. The court
appointed stand-by counsel, and adjourned the case for
motions and for trial; it set a deadline of December 8, 2017
for any party to file motions. Id. The court set
bail at $500, 000. Id. at Dkt. No. 5. The court also
entered on the record the defendant's speedy trial
demand. Id. at Dkt. No. 4.
The Petitioner's ...