United States District Court, E.D. Wisconsin
MICHEAL P. COTTON, Petitioner,
WARDEN SCOTT ECKSTEIN, Respondent.
Stadtmueller U.S. District Judge
January 5, 2018, Petitioner Micheal P. Cotton
(“Cotton”) filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, alleging that his
conviction and sentence were imposed in violation of the
Constitution and laws of the United States. (Docket #1).
Cotton has paid the $5.00 filing fee, and so the Court now
turns to screening his petition pursuant to Rule 4 of the
Rules Governing Section 2254 Cases in the United States
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.” The 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, the Court will analyze whether the petitioner has
complied with the statute of limitations, exhausted available
state remedies, avoided procedural default, and set forth
cognizable constitutional or federal claims.
August 31, 2012, Cotton was sentenced in Milwaukee County
Circuit Court to serve thirty-five years in prison after a
jury convicted him of four counts of first-degree sexual
assault of a child. He initiated his direct appeal of the
conviction and sentence on September 11, 2012, by filing a
notice of intent to pursue post-conviction relief. However,
as noted in the Court's review of Cotton's prior
habeas petition, his post-conviction proceedings were very
slow-going. See Cotton v. Eckstein, 17-CV-1103-JPS,
2017 WL 4162328, at *1 (E.D. Wis. Sept. 19, 2017).
earlier case, Cotton advanced a claim that the state court
was not attending to his motions for post-conviction relief
in a timely fashion. Id. The petition was dismissed
because the appeal was decided after the filing of the
petition but before the Court screened it, obviating the need
for habeas relief. Id. at *2. Furthermore, the Court
observed that to the extent Cotton wanted to bring his
substantive habeas claims before this Court, they remained
unexhausted because review was not yet had in the Wisconsin
Supreme Court. Id.
December 14, 2017, the Wisconsin Supreme Court denied
discretionary review of Cotton's post-conviction motions
and appeal. This petition followed.
the Court will consider the timeliness of Cotton'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 ninety days allowed for filing for
certiorari. Ray v. Clements, 700 F.3d 993, 1003 (7th
it appears that Cotton's petition is timely. He timely
initiated his appeal and post-conviction proceedings in state
court, but as a result of substantial delays, the trial court
did not deny the first motion for post-conviction relief
until October 16, 2015. Cotton timely appealed that ruling on
November 3, 2015.
state court records then become somewhat confused, as it
appears that the appeal was dismissed voluntarily after
counsel withdrew and Cotton decided to proceed pro
se. Cotton says he filed a supplemental post-conviction
motion on May 9, 2016, and this is consistent with the ruling
from the Wisconsin Court of Appeals. See (Docket #1
at 3); (Docket #1-1 at 7). That supplemental motion was
denied in the trial court on June 2, 2016 and timely appealed
from. The Wisconsin Court of Appeals issued its decision on
the appeal and the two post-conviction motions on August 29,
2017, and the Wisconsin Supreme Court denied review on
December 14, 2017. Because this petition was filed only a
month later, even if there was a procedural fumble between
the first and second post-conviction motions, creating a gap
during which the statute of limitations ran, it would not
amount to a year's time. At a minimum, the Court cannot
say at this early stage that the petition is plainly barred
by the statute of limitations.
the Court analyzes whether Cotton fully exhausted his state
court remedies as to his claims in this proceeding. A
district court may not address claims raised in a 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 merits”). A petitioner exhausts his
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).
Cotton appears to have exhausted his remedies as to each of
his three claims. Those claims are as follows: (1)
insufficiency of the evidence, in violation of Cotton's
due-process rights, based on discrepancies between the
charging document and the evidence at trial; (2) violation of
Cotton's right to a speedy trial under the Sixth
Amendment premised on the 18-month delay between his charging
and trial; and (3) ineffective assistance of trial counsel,
in violation of the Sixth Amendment, based on (a) disclosure
of Cotton's prior convictions to the jury, (b) failure to
object to allegedly prejudicial statements by the prosecutor
during closing argument, and (c) failure to cross-examine
witnesses regarding their prior statements to police
concerning the alleged misconduct. (Docket #1 at 4).
Wisconsin Court of Appeals' August 29, 2017 decision
reveals, Cotton presented each of these claims to the state
courts for their consideration, save one: the claim of
ineffective assistance of counsel based on the deficiencies
in cross-examination. That claim, said the Court of Appeals,
was never presented to the state trial court, meaning the
appellate court could and did refuse to consider it. (Docket
#1-1 at 9).
problem with this straggler claim in this Court is not
exhaustion of remedies, but procedural default. When the
petitioner has already pursued state court remedies (as
Cotton clearly has), but failed to present his claims
properly to the state courts along the way, “it is not
the exhaustion doctrine that stands in the path to habeas
relief. . .but rather the separate but related doctrine of
procedural default.” Perruquet, 390 F.3d at
514; Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir.
2004) (“A habeas petitioner who has exhausted his state
court remedies without properly asserting his federal claim
at each level of state court review has procedurally
defaulted that claim”). That doctrine provides that a
federal court cannot reach the merits of a habeas claim if
the petitioner either (1) failed to present his claim to the
state courts and it is clear that those courts would now hold
the claim procedurally barred, or (2) presented his claim to
the state courts but the state court dismissed the claim on
an independent and adequate state procedural ground.
Perruquet, 390 F.3d at 514; Moore v.
Bryant, 295 F.3d 771, 774 (7th Cir. 2002); Chambers
v. McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001).
did not present the cross-examination portion of his
ineffective-assistance claim to the Wisconsin trial court
before raising it in the Court of Appeals. As such, he
violated one of Wisconsin's own procedural rules,
State v. Caban, 563 N.W.2d 501, 505 (Wis. 1997)
(holding that “even [a] claim of a constitutional right
will be deemed waived unless timely raised in the circuit
court”), and that supplied an adequate and independent
ground for the disposition of the claim. The claim is
procedurally defaulted. See Gillis v. Grams, No.
08-CV-117-BBC, 2008 WL 2512915, at *6 (W.D. Wis. June 20,
2008) (finding that the Wisconsin Court of ...