United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
November 13, 2017, Petitioner James Lee Wright
(“Wright”) filed this petition pursuant to 28
U.S.C. § 2254, asserting that his state court conviction
and sentence were imposed in violation of the Constitution.
(Docket #1). Wright pleaded guilty to false imprisonment,
resisting police, and bail jumping, all as a repeat offender.
(Docket #1-1 at 1). The court sentenced Wright to over
fifteen years' imprisonment. (Docket #1 at 2).
of the Rules Governing § 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.” 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). Upon an
initial Rule 4 review of habeas petitions, the court will
analyze whether the petitioner has avoided statute of
limitations bars, exhausted available state remedies, avoided
procedural default, and set forth cognizable constitutional
or federal law claims.
court begins its Rule 4 review by examining the timeliness of
Wright's petition. A state prisoner in custody pursuant
to a state court judgment has one year from the date
“the judgment became final” to seek federal
habeas relief. 28 U.S.C. § 2244(d)(1)(A). A judgment
becomes final within the meaning of Section 2244(d)(1)(A)
when all direct appeals in the state courts are concluded
followed by either the completion or denial of certiorari
proceedings in the U.S. Supreme Court, or, if certiorari is
not sought, at the expiration of the 90 days allowed for
filing for certiorari. See Ray v. Clements, 700 F.3d
993, 1003 (7th Cir. 2012) (citing Anderson v.
Litscher, 281 F.3d 672, 675 (7th Cir. 2002)).
it appears Wright's petition is timely. From the face of
the petition, it appears that Wright's direct appeal
concluded on April 10, 2017, with the denial of his petition
for review with the Wisconsin Supreme Court. (Docket #1 at
3). He did not file a petition for certiorari to the United
States Supreme Court. Id. at 5. Because the petition
in this case was filed on November 13, 2017, it appears to
satisfy the time constraints of Section 2244(d).
court continues its Rule 4 review by examining Wright's
petition to determine whether he has exhausted his state
remedies. The district court may not address the merits of
the constitutional claims raised in a federal habeas petition
“unless the state courts have had a full and fair
opportunity to review them.” Farrell v. Lane,
939 F.2d 409, 410 (7th Cir. 1991). Accordingly, a state
prisoner is required to exhaust the remedies available in
state court before a district court will consider the merits
of a federal habeas petition. 28 U.S.C. § 2254(b)(1)(A);
Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir.
2001) (if petitioner “either failed to exhaust all
available state remedies or raise all claims before the state
courts, his petition must be denied without considering its
federal habeas petition has even a single unexhausted claim,
the district court may be required to dismiss the entire
petition and leave the petitioner with the choice of either
returning to state court to exhaust the claim or amending or
resubmitting the petition to present only exhausted claims.
See Rose v. Lundy, 455 U.S. 509, 510 (1982). Under
Rhines v. Weber, 544 U.S. 269, 278 (2005), the Court
should grant a stay to allow the petitioner to return to
state court to exhaust his claims when “the petitioner
had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally
dilatory litigation tactics.” See also Purvis v.
United States, 662 F.3d 939, 944 (7th Cir. 2011)
(applying Rhines to a mixed petition brought under
28 U.S.C. § 2255). The Court should also allow the
petitioner to amend his petition to remove any unexhausted
claims before dismissing the petition. Rhines, 544
U.S. at 278. A petitioner exhausts his constitutional claim
when he presents it to the highest state court for a ruling
on the merits. Lieberman v. Thomas, 505 F.3d 665,
669 (7th Cir. 2007) (citing Picard v. Connor, 404
U.S. 270, 275 (1971); Perruquet v. Briley, 390 F.3d
505, 513 (7th Cir. 2004)). Once the state's highest court
has had a full and fair opportunity to pass upon the merits
of the claim, a prisoner is not required to present it again
to the state courts. Humphrey v. Cady, 405 U.S. 504,
516 n.18 (1972).
offers four grounds for relief. First, the trial court failed
to establish Wright's agreement with the factual basis
for the false imprisonment charge before accepting his guilty
plea. (Docket #1 at 7-8). It appears that Wright brings this
claim as a violation of his due process rights. Id.
at 8 (arguing that his plea was not knowing, intelligent, and
voluntary); United States v. Cruse, 805 F.3d 795,
804 (7th Cir. 2015). Also in Ground One, Wright mentions the
bail jumping charge, and suggests that he received two
different sentences from different judges on the same charge.
(Docket #1 at 8). Second, Wright says that he received
ineffective assistance of counsel in two ways: 1) counsel
failed to advise him that his conduct did not fit the charge
of false imprisonment, and 2) counsel did not object to his
sentence, though it was excessive under Wisconsin law.
Id. at 9-10. Third, Wright objects to having the
sentences on his various counts of conviction run
consecutively. Id. at 11. Finally, Wright re-asserts
as a separate ground his belief that he received an excessive
sentence under Wisconsin law. Id. at 12.
face of the petition and the documents attached thereto, only
the first portion of Ground One was exhausted. The Wisconsin
Court of Appeals opinion addressing Wright's direct
appeal discussed only the due process claim related to the
false imprisonment guilty plea. (Docket #1-1 at 1-6). Neither
the second portion of Ground One nor any of the other grounds
are mentioned. Id. While Grounds Three and Four have
other fatal defects, as discussed below, the second portion
of Ground One and Ground Two do not otherwise appear to be
Wright presents a “mixed” petition of exhausted
and unexhausted claims, the Court must give him a choice.
This choice, however, will depend on the grounds upon which
Wright seeks relief. Wright can: (1) dismiss this petition in
its entirety in order to exhaust all his claims in state
courts; (2) move for a stay and abeyance while he returns to
state court to exhaust his unexhausted claims; or (3) elect
to proceed on only the exhausted claim described above. If he
dismisses the unexhausted claims, then the Court will be able
to consider only his exhausted claim.
Wright elects option (2) and wishes to maintain his
unexhausted claims and seek a stay and abeyance, he should
file a separate motion for a stay and abeyance. In that
motion, Wright will need to show that he “had good
cause for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation
tactics.” Rhines, 544 U.S. at 278. If Wright
elects option (3) and wishes to dismiss his unexhausted
claims and proceed only on his exhausted claim, then he
should: (a) file an amended petition which does not include
the unexhausted claims; and (b) file a separate letter
telling the Court that he wishes to proceed only on his
exhausted claim. Finally, if Wright elects option (1) and
seeks to dismiss this action in its entirety so that he may
exhaust his claims in the state court, he may notify the
Court of that decision by letter. The Court hereby warns
Wright that, if he proceeds only on the exhausted claim, he
may not be able to proceed on his other claims in a second or
successive petition. See 28 U.S.C. §
2244(b)(2). Whichever course of action Wright elects to take,
the Court will require him to file his amended petition,
motion, or letter as described herein within thirty
(30) days of the entry of this Order.
Court returns to the screening process. It next reviews
Wright's petition under Rule 4 to determine whether he
has procedurally defaulted on any of his claims. Even though
a constitutional claim in a federal habeas petition has been
exhausted, the court is still barred from considering the
claim if it has been procedurally defaulted by the
petitioner. See Mahaffey v. Schomig, 294 F.3d 907,
915 (7th Cir. 2002) (citing Boerckel v.
O'Sullivan, 135 F.3d 1194, 1196-97 (7th Cir. 1998),
rev'd on other grounds by O'Sullivan v.
Boerckel, 526 U.S. 838, 849 (1999)). A state prisoner
procedurally defaults on a constitutional claim in a habeas
petition when he fails to raise the claim in the state's
highest court in a timely fashion or in the manner prescribed
by state law. See O'Sullivan, 526 U.S. at 848;
Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir.
2000). Here, on the record before the Court, is it not clear
that Wright has procedurally defaulted on his claims. Thus,
the Court will not reject any of his claims on this basis.
Court concludes its Rule 4 review by screening for patently
frivolous and speculative claims in Wright's federal
habeas petition. See Ray, 700 F.3d at 996 n.1
(citing Small, 998 F.2d at 414, for the proposition
that district courts may dismiss petitioners that fail to
state a claim or are factually frivolous). Grounds Three and
Four are not only unexhausted, they are also patently
frivolous. Both grounds present issues of state law which are
not reviewable by a federal habeas court. King v.
Pfister, 834 F.3d 808, 814 (7th Cir. 2016). If Wright
elects option (3), he should not include these claims in his
IT IS ORDERED that, within thirty
(30) days of the entry of this Order, Petitioner
shall: (1) file a letter seeking dismissal of this action in
its entirety while he exhausts his claims in state court; (2)
move for a stay and abeyance of this action while he exhausts
his claims in state court; or (3) file a letter indicating
that he wishes to proceed ...