United States District Court, E.D. Wisconsin
ERVIN W. THOMAS, Petitioner,
v.
JUDY P. SMITH, Respondent.
ORDER
J.P.
Stadtmueller U.S. District Judge.
On
November 16, 2017, Petitioner Ervin W. Thomas
(“Thomas”) filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, alleging that this
conviction and sentence were imposed in violation of the
Constitution and laws of the United States. (Docket #1). The
Court will now turn to screening the petition under Rule 4 of
the Rules Governing Section 2254 Proceedings. 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.
Thomas'
petition focuses on the Interstate Agreement on Detainers
(“IAD”), codified in Wisconsin in Wis.Stat.
§ 976.05, which requires a defendant to be brought to
trial within 180 days of a demand for the same. “The
IAD is a congressionally approved interstate compact that
establishes procedures for the transfer of a prisoner in one
jurisdiction to the temporary custody of another.”
States v. Thomas, 834 N.W.2d 425, 429 (Wis. Ct. App.
2013) (quotation omitted). Central to this case is when
Thomas' notice invoking his IAD speedy-trial right was
considered to be received by the Milwaukee County District
Attorney's Office. See Wis. Stat. §
976.05(3)(a).
Because
the statute of limitations presents an initial obstacle to
Thomas' petition, as explained further below, only a
brief overview of the pertinent history is required at this
juncture. On August 27, 2009, Thomas was charged in Milwaukee
County Circuit Court with kidnapping, second-degree sexual
assault, and sexual assault of a child under sixteen years of
age. A warrant was issued the same day.
On
March 10, 2010, the warden of the Illinois prison where
Thomas was serving another sentence wrote a letter to the
Milwaukee County District Attorney, informing him that Thomas
had completed several forms requesting a speedy trial under
the IAD. Certified mail return receipts show that on March
15, 2010, an employee for Information Management Services
Distribution (“IMSD”)-the mailroom service for
the Milwaukee County office building containing the district
attorney's office-received Thomas's speedy-trial
request under the IAD. The request was then directed to the
district attorney's office, where it was received on
March 18, 2010.
During
the course of the prosecution, the parties argued when the
IAD clock would expire. The court, having received the March
18 filed-stamped IAD request from the district attorney and
not the March 15 certified mail return receipt from IMSD,
ruled that the clock did not begin to run until March 18. On
September 13, 2010, the date on which trial was scheduled to
begin, Thomas pled guilty to kidnapping, in violation of
Wis.Stat. § 940.31(1)(a), and second degree sexual
assault of a child, in violation of Wis.Stat. §
940.02(2). His plea would have fallen within the IAD period
only if it began to run on March 18, not March 15. He moved
in the trial court to vacate his pleas once he discovered the
March 15 certified mail return receipt from IMSD, but the
circuit court denied it, ruling that IMSD could not be
considered the district attorney's agent for receipt of
IAD notices.
Thomas
was sentenced on August 31, 2011, to an indeterminate period
of eighteen years of imprisonment on the kidnapping count,
and to an indeterminate period of eighteen years of
imprisonment on the second-degree-sexual-assault-of-a-child
count, to be served concurrent to the kidnapping count, but
consecutive to any other sentence. The judgment of conviction
was entered that same day.
Thomas
appealed on September 14, 2012, arguing that his rights under
the IAD had been violated because the IAD period began to run
on March 15, 2010. Alternatively, Thomas asserted that he
should not be responsible for the delay caused by the mail
service and should be permitted to rely on the date IMSD
received his notice. The Wisconsin Court of Appeals rejected
these arguments and affirmed the conviction in a decision
issued May 29, 2013. He filed a petition for discretionary
review of these issues in the Wisconsin Supreme Court on June
28, 2013. That request was denied on November 26, 2013.
Thomas sought reconsideration of the denial of discretionary
review, but the Supreme Court denied this request on April
11, 2014. Thomas did not file a petition for a writ of
certiorari to the U.S. Supreme Court.
Next,
on November 14, 2014, Thomas, proceeding pro se,
filed a motion for postconviction relief pursuant to
Wis.Stat. § 974.06. The motion raised several grounds
for relief, including: (1) that Thomas was denied the
effective assistance of counsel at trial and on appeal; (2)
that Thomas's IAD rights were violated; (3) that his
trial attorney was constitutionally ineffective for failing
to contact a state official regarding whether IMSD was
authorized to receive his IAD notice; and (4) that the State
withheld material and exculpatory evidence from him-namely,
the IMSD certified mail return receipt filed-stamped March
15, 2010. (At a hearing on the IAD issue in the trial court,
the district attorney presented only the IAD notice stamped
March 18.) The trial court denied the motion on November 21,
2014. Thomas tried unsuccessfully to commence an appeal of
this ruling by filing the motion directly in the Court of
Appeals, and then again in the Supreme Court. Neither court
accepted the motion as a proper way to lodge an appeal of the
denial of postconviction relief.
Thomas
filed a second postconviction motion on November 6, 2015,
this time with the assistance of a jailhouse lawyer. The
motion asserted a claim of newly discovered
evidence-specifically, a letter from the Milwaukee County
Office of Corporation Counsel relating to IMSD's
authority to accept mail for the district attorney, and
entries from signature logs in the district attorney's
office. That motion was denied on November 17, 2015 in the
trial court under State v. Escalona-Naranjo, 517
N.W.2d 157 (Wis. 1994), which bars a prisoner from raising
issues in a successive motion for postconviction relief that
could have been raised in a prior motion. His appeals
therefrom were also unsuccessful. The Wisconsin Court of
Appeals affirmed the trial court's ruling on March 15,
2017, and the Wisconsin Supreme Court denied discretionary
review on June 12, 2017. He sought reconsideration of the
Supreme Court's decision, but that too was denied in an
order dated June 30, 2017.
Thomas
filed the instant petition on November 16, 2017. His claims
mirror those raised at various times in the state
proceedings. First, Thomas says that his trial and appellate
counsel were ineffective, although he seems to think so only
because they did not succeed in persuading the state courts
of the merits of his IAD claim. Second, Thomas contends that
the State withheld material and exculpatory evidence from him
in the form of the March 15 certified mail receipt from IMSD.
Third, Thomas raises a separate ineffectiveness charge
against his trial counsel, claiming that counsel should have
contacted IMSD prior to his guilty plea and asked whether the
IMSD employee who actually handled Thomas' IAD notice was
authorized to sign the certified mail receipt for it. Fourth
is Thomas' newly discovered evidence claim, wherein he
says he was entitled to renew his IAD challenge once he
received additional evidence suggesting that the IAD notice
was received in the district attorney's office on March
15, 2010.
As part
of its Rule 4 review, the Court first considers the
timeliness of the 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 ninety days allowed for
filing for certiorari. See Ray v. Clements, 700 F.3d
993, 1003 (7th Cir. 2012).
Here,
it appears the petition is untimely. Thomas' direct
appeal ended on November 26, 2013, the day that the Wisconsin
Supreme Court denied his request for discretionary review.
His motion to reconsider that decision did not prolong his
appeal for two reasons. First, the Wisconsin Supreme Court is
not authorized to reconsider a denial of review. Hanson
v. Haines, No. 13-CV-0896, 2014 WL 4792648, at *2 (E.D.
Wis. Sept. 25, 2014) (citing Archdiocese of Milwaukee v.
City of Milwaukee, 284 N.W.2d 29, 30 (Wis. 1979)).
Second, denial of discretionary review has no effect on the
underlying judgment. Id.; Dep't of Banking
of Neb. v. Pink, 317 U.S. 264, 266- 67 (1942).
Consequently, Thomas' 90-day period for petitioning the
U.S. Supreme Court began to run on November 26, 2013, and
expired on February 26, 2014. As another branch of this Court
has observed, to hold otherwise “would allow prisoners
to effectively extend the time they have to file a §
2254 petition in federal court by filing improper motions in
state court.” Hanson, 2014 WL 4792648, at *3.
As noted above, Thomas did not seek a writ of certiorari, so
the one-year habeas clock started to run on February 26,
2014.
His
first postconviction motion was filed 261 days later, on
November 13, 2014. It was denied after a period of seven
days, during which the statute of limitations was tolled. 28
U.S.C. § 2244(d)(2) (“The 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 any period of
limitation under this subsection.”). Thomas tried to
appeal, but did not do so in conformity with Wisconsin
procedure, and so none of the time the Wisconsin appellate
courts may have considered this “appeal” can be
tolled. Ray, 700 F.3d at 1003 (whether a state
postconviction proceeding is ...