United States District Court, E.D. Wisconsin
CORY D. BROWN, Petitioner,
WARDEN BOUGHTON, Respondent.
STADTMUELLER, U.S. DISTRICT JUDGE.
January 19, 2018, state prisoner Cory D. Brown
(“Brown”), proceeding pro se, filed a
one-page document captioned a “motion for stay and
abeyance” pursuant to 28 U.S.C. § 2244(d). (Docket
#2 at 1). The Court denied the motion on January 25, 2018,
finding that to the extent Brown sought a simple extension of
time to file a habeas petition, the Court could not grant it
without information corroborating his federal filing deadline
or supporting the application of equitable tolling.
Id. at 2-3. Moreover, because the motion contained
no detail as to the facts of Brown's conviction or the
nature of his habeas claims, it did not present a valid
“protective” habeas petition, filed to hold
Brown's place in federal court while he exhausted his
state court remedies. Id. at 3-4; Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005). Consequently, the
Court denied the motion and dismissed the case. (Docket #2 at
filed an amended motion on February 12, 2018. Id. at
6-12. In it, he gave additional details about the nature of
his conviction, sentence, post-conviction proceedings, and
federal habeas claims. See Id. He claimed confusion
about his federal filing deadline and requested a stay and
abeyance while he completed the remaining state court
exhaustion process. See Id. But in an order dated
February 21, 2018, the Court was obliged to deny this motion,
too, as it lacked sufficient detail to qualify as a
protective habeas petition. See (Docket #1 at 2-4).
The Court gave Brown one more chance to file a complete
habeas petition that could serve as a protective petition.
Id. at 4. It further directed that this habeas
action be opened in place of the existing miscellaneous
action in which Brown's prior motions had been docketed.
Id. at 4-5.
to the Court, Brown had already filed a complete habeas
petition, using the Court's form, which had been docketed
in a separate action by the Clerk of the Court. (Docket #3).
It was signed by Brown on February 14, 2018 and marked
received by the Clerk of the Court on February 21, 2018.
Id. at 1, 13. Because the Court now has before it a
complete habeas petition necessary to proceed with screening
under Rule 4 of the Rules Governing Section 2254 Proceedings,
the Court will do so without requiring Brown to submit
another copy of the petition as it directed in its February
21, 2018 order.
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.” This 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). Under Rule 4, the Court
analyzes preliminary obstacles to review, such as whether the
petitioner has complied with the statute of limitations,
exhausted available state remedies, avoided procedural
default, and set forth cognizable claims.
October 16, 2013, Brown was found guilty by a jury of
repeated sexual assault of a child and incest with a child,
in Milwaukee County Circuit Court Case No. 2013CF1897. The
charges arose from Brown's repeated sexual assaults
against his biological daughter, A.B., on various occasions
before her tenth birthday. He was sentenced to two concurrent
terms of forty years, each with twenty-five years of initial
confinement and fifteen years of extended supervision.
filed a notice of intent to pursue post-conviction relief on
October 18, 2013. His post-conviction motion was not filed
until a year later, on October 15, 2014. The motion was
denied in the trial court on October 22, 2014. On December
19, 2014, Brown's appellate and post-conviction attorney
filed a no-merit report regarding his appeal, but the state
appellate court directed counsel to consider several other
potentially pertinent issues. Upon further consideration,
counsel determined that there were in fact several
meritorious issues for appeal. The Court of Appeals granted
counsel leave to dismiss the no-merit report and file a new
motion was denied by the trial court on December 3, 2015.
Counsel again filed a no-merit report in the Court of
Appeals. Brown did not oppose that report. On February 20,
2017, the Wisconsin Court of Appeals issued an order
affirming Brown's conviction and rejecting all of the
myriad ground for relief raised in his two post-conviction
motions. See Brown, 2017 WL 689685. On April 6,
2017, the Wisconsin Supreme Court declined to exercise
discretionary review over that decision, as Brown had not
timely sought such review and the period for seeking it
cannot be enlarged. See Wis. Stat. Rule 808.10(1);
First Wis. Nat'l Bank of Madison v. Nicholaou,
274 N.W.2d 704, 706 (Wis. 1979).
Statute of Limitations
of the screening process, the Court will first consider the
timeliness of Brown'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 United States 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).
it appears that Brown's petition is timely. He timely
initiated his appeal and post-conviction proceedings after
sentencing. The Wisconsin Court of Appeals issued its final
decision on February 20, 2017. Brown did not seek
discretionary review in the Wisconsin Supreme Court within
thirty days as required by Wisconsin law. See Wis.
Stat. Rule 808.10(1). As a result, his judgment became final
on March 20, 2017, the date when his time for seeking review
with the State's highest court expired. Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012). The instant petition