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Cotton v. Eckstein

United States District Court, E.D. Wisconsin

January 24, 2018

MICHEAL P. COTTON, Petitioner,


          J.P. Stadtmueller U.S. District Judge

         On January 5, 2018, Petitioner Micheal P. Cotton (“Cotton”)[1] 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 District Courts.

         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.” 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.

         On 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.[2] 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).

         In his 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.

         On December 14, 2017, the Wisconsin Supreme Court denied discretionary review of Cotton's post-conviction motions and appeal. This petition followed.

         First, 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 Cir. 2012).

         Here, 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.[3] Cotton timely appealed that ruling on November 3, 2015.

         The 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.

         Next, 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).

         Here, 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).

         As the 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).[4]

         But the 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).

         Cotton 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 ...

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