United States District Court, E.D. Wisconsin
WILLIAM J. LEE, Petitioner,
LISA AVILA,  Superintendent, Sturtevant Transitional Facility, Respondent.
ORDER DENYING WITHOUT PREJUDICE RESPONDENT'S
MOTION TO DISMISS (DKT. NO. 9) AND SETTING BRIEFING
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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 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.
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.
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.
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.
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.
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.
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.
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
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).
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
https://wcca.wicourts.gov). 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
https://wscca.wicourts.gov). 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.
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 https://wcca.wicourts.gov).
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.
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
https://wscca.wicourts.gov). 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.
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.
review of the Brown County Circuit Court docket for State
v. Lee, Case No. 2002CF000886 (Brown County Circuit
Court) (accessible at https://wcca.wicourts.gov)
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.
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, 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. Dkt. No. 1.
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 ...