Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tatum v. Eckstein

United States District Court, E.D. Wisconsin

November 21, 2017

ROBERT L. TATUM, Petitioner,
v.
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

          PAMELA PEPPER United States District Judge

         I. Introduction

         In 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.

         Meanwhile, 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.

         II. Procedural History

         On 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.

         The 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.

         A short 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 following language:

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 (1975).

Id. at Dkt. No. 94.

         On 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.” https://ecf.ca7.uscourts.gov/cmecf. Through 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 petitioner's motions.

         Meanwhile, 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.

         On 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.

         III. The Petitioner's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.