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Lee v. Avila

United States District Court, E.D. Wisconsin

January 23, 2018

WILLIAM J. LEE, Petitioner,
LISA AVILA, [1] Superintendent, Sturtevant Transitional Facility, Respondent.



         In the summer of 2016, William Lee filed a petition for writ of habeas corpus challenging his 2009 judgment of conviction in Brown County Circuit Court on one count of armed robbery with use of force, as a repeater. Dkt. No. 1. On October 19, 2016, the respondent[2] filed a motion to dismiss the petition as untimely under 28 U.S.C. §2244(d)(1). The parties have fully briefed that motion. Because the respondent has not established that statutory tolling does not apply, and did not address the doctrine of equitable tolling, the court will deny the motion to dismiss without prejudice, and will set a briefing schedule for the parties to address the court's concerns.

         I. Background

         A jury found the petitioner guilty of robbery with the use of force. Dkt. No. 9-1 at 1. On February 20, 2009, the Brown County Circuit Court judge sentenced the petitioner to ten years in custody and fifteen years of extended supervision. Id. On April 27, 2009, Attorney Teresa Schmieder wrote to the petitioner, telling him that she had been appointed to represent him on his post-conviction claims. Dkt. No. 14-1 at 1. Attorney Schmieder told the petitioner that she was very busy with other matters, and thus would not be able to meet with him for thirty to forty-five days. Id.

         On June 5, 2009, the petitioner wrote back to Attorney Schmieder, asking when she planned to visit him (given the fact that more than forty-five days had passed since she'd written him). Id. at 3. The petitioner wrote to counsel again on August 5, 2009, indicating that she'd still not met with him, that his family had been trying unsuccessfully to reach her, and asking whether she was representing him or not. Id. at 4. The petitioner wrote three more letters-dated November 6, 2009, January 18, 2010 and November 15, 2010-each indicating that the petitioner still had not heard from Attorney Schmieder. Id. at 5-7. Finally, on November 18, 2010, Attorney Schmieder wrote the petitioner, indicating that she was waiting on five transcripts from the circuit court case, and that she would set up a telephone conference with him after she received the transcripts. Id. at 8-9. The petitioner took matters into his own hands and contacted the court reporter, learning that the court reporter had provided Attorney Schmieder with the last transcripts on December 20, 2010. The petitioner asked Schmieder to send him copies of the transcripts, so he could help with the appeal. Id. at 11.

         The petitioner wrote Schmieder again on April 30, 2011, strongly reiterating that he wanted her to file an appeal, and asking where the transcripts were. Id. at 12. Attorney Schmieder responded on May 16, 2011, advising the petitioner that she had not been able to “find a viable avenue of appeal” for him. Id. at 13-14. She did not provide any further explanation of how she came to this conclusion. Attorney Schmieder told the petitioner that he had three options at that point: (1) he could accept her conclusion that he had no basis for an appeal, and she would close the case; (2) he could disagree with her that he had no basis for appeal, and she could file a no-merit report in the court of appeals; or (3) he could disagree with her that he had no basis for an appeal, and hire private counsel to review the case for him. Id.

         The petitioner responded that he would not let Attorney Schmeider, or anyone else, demand “that [he] operate in the dark regarding [his] appeal and make a choice without providing [him] with [his] record to review.” He refused to choose any of the three options until he had had the ability to review the record. Id. at 15.

         Six days after the date on which the petitioner responded, Attorney Schmieder sent the petitioner another letter; she had not received his response, so she reiterated the three options she'd presented in her prior correspondence. Id. at 16-17. The petitioner promptly sent Schmieder a copy of his original response. Id. at 18. On January 20, 2012, the petitioner wrote Schmieder another letter, indicating that he was coming to the conclusion that she had abandoned him, because she'd filed nothing for him and had yet to come and visit him or talk with him on the telephone. Id. at 19.

         The two must have had the opportunity to talk at some point over the next year, because on February 1, 2013, Attorney Schmieder wrote to the petitioner regarding their “last conversation.” Id. at 20. She indicated that she would send the petitioner copies of his transcripts “upon the conclusion” of her representation of him. She also stated that she believed that the petitioner had “released [her] from representation and that [he] had abandoned [his] appeal.” Id. She acknowledged that the petitioner had told her during their conversation that this was not the case, and that he'd asked to meet with her. She told him she would be available to arrange a “courtesy” visit with him sometime after the second week of February. Id. At this point, the petitioner told Attorney Schmieder that he would take action against her if she did not send him all of his trial records. Id. at 21-23. Attorney Schmieder responded on February 11, 2013, stating that she was providing the petitioner with copies of his transcripts and the court record, and that she was closing her file. Id. at 24.

         Three days letter, Schmieder sent the petitioner another letter. Id. at 25. She informed him that she'd learned from someone at the Wisconsin State Public Defender's Office that in order for her to be “discharged” from acting as the petitioner's lawyer, either the petitioner needed to sign a stipulation asking her to withdraw (which she'd file with the Brown County Circuit Court for approval), or she needed to file her own motion to withdraw in the circuit court. She informed the petitioner that if he did not stipulate to discharge her, or if the circuit court denied her motion to withdraw, she would file a no-merit report. She told the petitioner that if she did not hear from him in two weeks, she would file the motion to withdraw. Id.

         A few days later, Joseph Ehmann (who was the first assistant in the Wisconsin State Public Defender's Office) wrote to the petitioner, conceding that Attorney Schmieder's conduct had not been appropriate. Id. at 26-27. Attorney Ehmann told the petitioner that he had the same options Schmieder had given him earlier: Attorney Schmieder could file a motion in the court of appeals to “revive” his lapsed appeal deadline (and if the court of appeals granted that motion, Schmieder could file a no-merit report), or she could ask the court of appeals to revive the lapsed appeal deadline and file a motion in the circuit court asking to withdraw as counsel (which, if the court granted it, would have allowed the petitioner to proceed on his own). Id.

         About two months later, the petitioner, acting on his own behalf, filed habeas petitions in all three Wisconsin courts-the Brown County Circuit Court, the Court of Appeals and the Wisconsin Supreme Court. It appears that the petitioner filed all three petitions on April 12, 2013. See State v. Lee, Case No. 2002CF000886 (Brown County Circuit Court) (accessible at The Wisconsin Court of Appeals struck the petition he filed there on April 23, 2013. Lee v. Kemper, Appeal No. 2013AP000829-W (Wisconsin Court of Appeals, District III) (accessible at The court struck the petition “because it was not verified as required by Wis.Stat. § 782.04 (2013-14).” Dkt. No. 9-2 at ¶3.

         On April 19, 2013, Schmieder filed a motion to withdraw as counsel in the Brown County Circuit Court. State v. Lee, Case No. 2002CF000886 (Brown County Circuit Court) at docket entry 58 (accessible at The circuit court never ruled on that motion, but on October 4, 2013, Attorney Schmieder filed in the court of appeals a motion to extend the time for filing a no-merit report, based on her difficulties in receiving and reviewing fifty-three transcripts from the case, as well as her belief that the petitioner had decided not to appeal. Dkt. No. 9-2 at ¶4. On October 7, 2013, the Wisconsin Court of Appeals granted Schmieder's motion to withdraw, and extended the deadline for filing a no-merit notice of appeal to November 29, 2013 and the deadline for filing a no-merit report to December 6, 2013. Dkt. No. 9-3 at 2-3.

         On November 26, 2013, the Wisconsin Supreme Court dismissed the habeas petition the petitioner had filed there as moot. Lee v. Kemper, 2013AP000823-W (Wisconsin Supreme Court) (accessible at The Supreme Court found the petition moot because the Court of Appeals had extended the petitioner's deadline to file a no-merit appeal. Dkt. No. 9-2 at ¶5. This left pending the petitioner's Brown County Circuit Court habeas petition.

         On December 2, 2013, Attorney Schmieder filed a no-merit notice of appeal. Id. at ¶6. The petitioner promptly filed a motion in the court of appeals, asking to fire Attorney Schmieder, to strike the no-merit notice of appeal and to obtain permission to proceed pro se with either an appeal or a post-conviction motion. The court of appeals granted that request on December 27, 2013-it granted the motion to discharge Attorney Schmieder, dismissed the no-merit appeal without prejudice and gave the petitioner sixty days (until February 25, 2014) to file “a postconviction motion.” Dkt. No. 9-3 at 2.

         A review of the Brown County Circuit Court docket for State v. Lee, Case No. 2002CF000886 (Brown County Circuit Court) (accessible at shows that the petitioner did not file a post-conviction motion, either by February 25, 2014 or at any time after the court of appeals issued its order setting the deadline.

         The petitioner's April 12, 2013 habeas petition, however-one of the three he'd filed on that day, one at each level of the Wisconsin court system- remained pending in the Brown County Circuit Court. On February 7, 2014[3], the Brown County Circuit Court denied the habeas petition. Dkt. No. 9-2 at ¶6. The petitioner appealed, and the Wisconsin Court of Appeals affirmed the circuit court, finding that the petitioner had filed in the wrong forum (the circuit court, rather than the court of appeals), that he had other adequate remedies at law (raising his issues in the no-merit process, or in a post-conviction motion under Wis.Stat. §974.06), and that he had failed to establish ineffective assistance by his appellate attorney. Dkt. No. 9-2. The Wisconsin Supreme Court denied the petition for review on January 11, 2016. Dkt. No. 9-4 at docket entry 2. The petitioner filed this federal petition in the Eastern District of Wisconsin on June 21, 3016.[4] Dkt. No. 1.

         II. Discussion

         A. The Statute of Limitations Under AEDPA The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, governs the grant of a writ of habeas corpus. Under AEDPA, a habeas petitioner has one year from the date his conviction becomes final to file a federal habeas petition. 28 U.S.C. §2244(d)(1). The limitation period runs from the latest of

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time ...

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