United States District Court, E.D. Wisconsin
ABDIWAHAB M. HUSSEIN, Petitioner,
BRIAN FOSTER, Warden, Respondent.
DECISION AND ORDER
ADELMAN DISTRICT JUDGE
Hussein petitions for a writ of habeas corpus under 28 U.S.C.
§ 2254. In a prior order, I denied, without prejudice,
the respondent's motion to dismiss the petition as
untimely under 28 U.S.C. § 2244(d). See Order
of Jan. 20, 2017, ECF No. 23. I concluded that although the
petition was filed after the expiration of the one-year
limitations period, Hussein's claim that he was entitled
to equitable tolling required further exploration. I then
found that resolving the merits of Hussein's petition
would be simpler than conducting further proceedings on
equitable tolling. I thus directed the respondent to answer
the petition and directed the parties to file briefs on the
merits, which they have done.
merits brief, the respondent raises a different procedural
defense, which is that Hussein has not exhausted all of the
federal claims he asserts in his petition. It is undisputed
that Hussein properly exhausted his claim that his statement
to the police should have been suppressed under Miranda
v. Arizona, 384 U.S. 436 (1966). But the respondent
notes correctly that none of the dozens of other claims that
Hussein alleges in his petition has been properly exhausted.
In my last order, I noted that Hussein had not exhausted
these claims and predicted that the respondent would allege
that Hussein's failure to exhaust those claims resulted
in a procedural default. See, e.g., Bolton v.
Akpore, 730 F.3d 685, 696 (7th Cir. 2013) (explaining
how failure to properly exhaust can lead to procedural
default when state court remedies are no longer available).
However, the respondent does not allege that Hussein's
lack of exhaustion resulted in a procedural default. Instead,
the respondent argues that Hussein may still return to state
court and exhaust his claims by raising them in a collateral
postconviction motion under Wis.Stat. § 974.06. The
respondent recommends that, in accordance with Rhines v.
Weber, 544 U.S. 269 (2005), I give Hussein the choice of
either deleting his unexhausted claims and proceeding with
the exhausted claim or requesting that I stay this case and
hold it in abeyance while he returns to state court to
exhaust the unexhausted claims.
reply brief, Hussein seems to disagree with the notion that
he may still obtain review of his unexhausted federal claims
in state court. See “Rebuttal” Br. at 2,
5, 8, 13, ECF No. 35. Hussein contends that if he files a
collateral postconviction motion under § 974.06, the
motion will be denied based on State v.
Escalona-Naranjo, 185 Wis.2d 168 (1994), which holds
that, absent a “sufficient reason, ” a criminal
defendant cannot raise an issue in a motion under §
974.06 that he could have raised on direct appeal,
id. at 184-86. Hussein may be correct on that point.
But if he is, then it would follow that he has procedurally
defaulted his unexhausted claims. See Bolton, 730
F.3d at 696. In that event, Hussein could not obtain federal
review unless he showed either cause and prejudice or that
the failure to consider his claims would result in a
fundamental miscarriage of justice. Id.
has not argued that he fits within the
fundamental-miscarriage-of-justice exception. However, he
seems to allege ineffective assistance of appellate counsel
as cause for his failure to exhaust. See Rebuttal
Br. at 8. But a claim of ineffective assistance of appellate
counsel asserted as cause for a procedural default must
itself be properly exhausted in state court. See Edwards
v. Carpenter, 529 U.S. 446 (2000); Lewis v.
Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). Hussein
has not raised his challenge to appellate counsel's
effectiveness in state court, and thus he has not exhausted
it. Moreover, it appears that Hussein may yet obtain
state-court review of that claim. To the extent Hussein is
challenging the performance of appellate counsel in the court
of appeals-i.e., challenging counsel's failure to raise
certain issues in his appellate briefs-he may raise that
issue in a petition for a writ of habeas corpus filed with
the court of appeals that heard the appeal. See State v.
Knight, 168 Wis.2d 509, 520 (1992). To the extent
Hussein is challenging the performance of appellate counsel
in his “postconviction” capacity-i.e.,
challenging his failure to raise certain issues, such as
ineffective assistance of trial counsel, that had to be
raised in the trial court before they could be raised in the
court of appeals-he may raise that issue in either a petition
for a writ of habeas corpus filed in the trial court or in a
motion under § 974.06. See State ex rel. Rothering
v. McCaughtry, 205 Wis.2d 675, 681 (Ct. App. 1996). And
I note that ineffective assistance of postconviction counsel
may qualify as a “sufficient reason” under
Escalona-Naranjo, thus permitting the trial court to
consider Hussein's other unexhausted claims on the
merits. See Id. at 682-83.
it appears that Hussein still has avenues to relief available
in state court, I will give him the option of requesting the
stay-and-abeyance procedure of Rhines v. Weber. If
Hussein would like me to stay the federal petition and hold
it in abeyance while he attempts to exhaust his unexhausted
claims in accordance with Knight and
Rothering, he should so inform me within 30 days of
the date of this order. Alternatively, the petitioner may
decide not to request a stay and instead file an amended
federal petition that omits the unexhausted claims. Such an
amended petition may contain only the Miranda claim
that Hussein's appellate counsel presented to both the
Wisconsin Court of Appeals and the Wisconsin Supreme Court on
direct appeal. Finally, I advise the petitioner that if he
does not either request a stay or file an amended petition in
accordance with this order, I will dismiss the entire
petition without prejudice on the ground that it is a mixed
petition. Such a dismissal would likely mean the termination
of any federal review. See Rhines, 544 U.S. at 275.
IT IS ORDERED that, on or before
April 20, 2018, Hussein shall either (1)
request that I stay this case and hold it in abeyance while
he exhausts his remaining state-court remedies, or (2) file
an amended petition asserting only his Miranda
claim. If Hussein does neither of these things, I will enter
an order dismissing his current petition without prejudice.
IS FURTHER ORDERED that Hussein's “motion
for expedited consideration” ...