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Brown v. Boughton

United States District Court, E.D. Wisconsin

March 5, 2018

CORY D. BROWN, Petitioner,



         1. INTRODUCTION

         On January 19, 2018, state prisoner Cory D. Brown (“Brown”), [1]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 4).

         Brown 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.

         Unbeknownst 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.[2]

         Rule 4 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.

         2. BACKGROUND

         On 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.

         He 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 post-conviction motion.

         That 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).

         3. ANALYSIS

         3.1 Statute of Limitations

         As part 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).

         Here, 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 was ...

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