United States District Court, W.D. Wisconsin
STEPHEN L. CROCKER MAGISTRATE JUDGE
February 5, 2018, petitioner Mychael Hatcher filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254, challenging a judgment of conviction in Brown County
Circuit Court, Case No. 2010CF770, as well as a Motion for
Stay along with the petition. (Dkts. 1, 2.) For the following
reasons, the court will grant his motion to stay.
a jury trial, Hatcher was found guilty of second-degree
sexual assault, obstruction, and bail jumping, in violation
of Wis.Stat. §§ 940.225(2)(cm), 946.41(1),
946.49(1)(a). State v. Hatcher, No. 2010CF770 (Brown
Cty. Cir. Ct. May 18, 2011), available at
https://wcca.wicourts.gov (last visited Feb. 12, 2018).
On April 23, 2014, Hatcher, by counsel, filed a a
post-conviction motion. In it, he raised six grounds for
relief: (1) the court admitted inadmissible statements; (2)
the court refused to accept a guilty plea; (3) the court
violated petitioner's right to present a defense by
limiting his testimony; (4) the court allowed the government
to call an unrelated rebuttal witness; (5) petitioner's
trial counsel was ineffective; and (6) the interest of
justice supported reversal. The motion was denied on November
6, 2014, and the motion for reconsideration was denied on
February 2, 2015.
counsel, Hatcher appealed the denial of his post-conviction
motion to the Wisconsin Court of Appeals. On August 16, 2016,
the Wisconsin Court of Appeals rejected each of his arguments
and affirmed his conviction, and the Wisconsin Supreme Court
denied his petition for review on November 14, 2016.
State v. Hatcher, No. 2015AP0297. Hatcher did not
file a petition for certiorari in the United States Supreme
one year statute of limitations to file the instant petition
in federal court started to run on February 14, 2017, which
was 90 days after the Wisconsin Supreme Court denied his
petition for review of that claim. Hatcher filed his petition
in this court on February 5, 2018. Hatcher has not yet filed
a motion for post-conviction relief pursuant to Wis.Stat.
§ 974.06, but based on his statements in his motion to
stay these proceedings, it appears that he is in the process
of preparing that motion.
petition, Hatcher includes six grounds for relief: (1) the
trial court denied him a fair trial when it denied him the
opportunity to enter guilty pleas; (2) the trial court
violated his right to a fair trial when it permitted the
government to submit rebuttal evidence based upon information
obtained on direct during cross examination; (3) the trial
court's limit on petitioner's testimony violated his
right to present a defense; (4) trial counsel was ineffective
in failing to file a suppression motion; (5) trial counsel
was ineffective in introducing a BAC report at trial without
expert testimony; and (6) his post-conviction/appellate
counsel was ineffective in failing to present any evidence at
the post-conviction hearing on how petitioner would have
testified at trial if given the chance and in failing to
obtain the victim's text messages.
first five grounds were reviewed and rejected by the
Wisconsin Supreme Court, it appears that they have been
exhausted. Petitioner acknowledges that his sixth ground has
not been exhausted and he has not yet filed a § 974.06
motion, so the Wisconsin Supreme Court has not had the
opportunity to review that claim.
Rhines v. Weber, 544 U.S. 269, 277 (2005), courts
may stay a mixed petition, that is, a petition containing
both exhausted and unexhausted claims, in situations in which
outright dismissal of the petition could jeopardize the
petitioner's ability to later file a timely habeas
petition on the unexhausted claims. Id. at 275. Stay
and abeyance is available only if there was good cause for
petitioner's failure to exhaust his claims in state court
first, the unexhausted claims are not plainly meritless and
the petitioner does not appear to be engaged in abusive
litigation tactics or intentional delay. In general, courts
have found that a petitioner's right to federal review is
not at risk when he has at least 60 days remaining on his
federal clock within which to initiate the state court
exhaustion process and return to federal court after
completing it. Crews v. Horn, 360 F.3d 146, 154 (3d
Cir. 2004) (petitioner ought to be able to file application
for state post conviction relief within 30 days and return to
federal court within 30 days after state court exhaustion is
completed); Palmer v. Carlton, 276 F.3d 777, 781
(6th Cir. 2002) (same); Zarvela v. Artuz, 254 F.3d
374, 381 (2d Cir. 2001) (same).
it appears that petitioner's federal habeas clock will
expire on February 14, 2018, so dismissing his unexhausted
claims likely would bar him from raising those claims in a
later-filed federal habeas petition. Additionally, there is
no indication that petitioner has engaged in intentionally
dilatory litigation tactics. Because petitioner contends that
his post- conviction/appellate counsel was ineffective for
failing to investigate the text messages and phone calls sent
or received by the victim, I find that petitioner had good
cause for his failure to exhaust that claim at this juncture.
Finally, it would be premature for me to conclude from the
limited record before it that petitioner's claims have no
potential merit. Therefore, I will grant petitioner's
motion for a stay.
some additional comments for petitioner's benefit: First,
the Wisconsin courts distinguish claims challenging the
effectiveness of post-conviction counsel from those
challenging the effectiveness of appellate counsel.
See Wis. Stat. § 974.06; State ex rel.
Rothering v. McCaughtry, 205 Wis.2d 675, 556 N.W.2d
136 (Ct. App. 1996) (describing procedure for challenging
effectiveness of post-conviction counsel); State v.
Knight, 168 Wis.2d 509, 520, 484 N.W.2d 540, 544 (1992)
(appellate counsel). In this case, it appears that petitioner
is challenging the effectiveness of both his post-conviction
and appellate lawyers, so petitioner should review these
cases to make sure that he follows the appropriate procedures
for exhausting his claims.
this court will not tread water with petitioner's federal
habeas petition indefinitely. Rhines, 544 U.S. at
277. I am granting the requested stay on the condition that,
after petitioner has completely exhausted his state court
remedies, he then has 30 days from the date
of the last order from the state courts in which to file a
motion in this court to lift the stay. If petitioner fails to
meet this ...