United States District Court, E.D. Wisconsin
MICHAEL S. DENGSAVANG, Petitioner,
WILLIAM POLLARD, Respondent.
STADTMUELLER U.S. DISTRICT JUDGE
August 11, 2017, petitioner Michael S. Dengsavang
(“Dengsavang”) filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, asserting
that his state court conviction and sentence were imposed in
violation of the Constitution. (Docket #1). He also filed a
motion for a stay and abeyance in which he asks the Court to
stay this habeas action while he returns to the Wisconsin
state courts to properly exhaust certain of the claims he
seeks to present here. (Docket #3).
of the Rules Governing § 2254 Cases in the United States
District Courts 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.
balance of this Order, the Court will conduct a Rule 4
screening of Dengsavang's petition and address
Dengsavang's motion for a stay and abeyance.
Statute of Limitations
Court begins its Rule 4 review by examining the timeliness of
Dengsavang'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 90 days allowed for
filing for certiorari. See Ray v. Clements, 700 F.3d
993, 1003 (7th Cir. 2012) (citing Anderson v.
Litscher, 281 F.3d 672, 675 (7th Cir. 2002)).
Dengsavang's petition appears timely. Dengsavang was
convicted by a jury in Milwaukee County Circuit Court of
attempted first-degree intentional homicide, armed robbery
with use of force, and burglary, all as a party to a crime.
(Docket #1 at 2). On July 23, 2010, he was sentenced to
eighty-five years' imprisonment. Id. On the face
of the petition, Dengsavang represents that his direct appeal
process ended on October 6, 2014, with the denial of his
petition for review by the Wisconsin Supreme Court (he did
not seek certiorari). Id. at 3.
Dengsavang also filed a post-conviction motion on April 16,
2013, during the pendency of his direct appeal. Id.
at 5. The post- conviction motion was denied by the trial
court on June 24, 2013. Id. Dengsavang provides few
details about the appeal of his post-conviction motion, but
the Court has reviewed the publicly available Wisconsin court
records for Dengsavang's criminal case and learned that
the post-conviction motion appeal ended on September 8, 2016,
again with the Wisconsin Supreme Court's denial of a
petition for review. See State v. Dengsavang, 891
N.W.2d 407 (Wis. 2016).
Dengsavang's one-year limitations clock started on
September 8, 2016, and his deadline for filing a petition
with this Court was September 8, 2017. Therefore, when
Dengsavang filed his petition on August 11, 2017, it appears
the limitations period had not yet expired. Of course, if the
Court's understanding is incorrect, Respondent remains
free to raise the statute of limitations as a defense to
Exhaustion of State Court Remedies
Court continues its Rule 4 review by examining
Dengsavang's petition to determine whether he has
exhausted his state remedies. The district court may not
address the merits of the constitutional claims raised in a
federal 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.”).
federal habeas petition has even a single unexhausted claim,
the district court may be required to dismiss the entire
petition and leave the petitioner with the choice of either
returning to state court to exhaust the claim or amending or
resubmitting the petition to present only exhausted claims.
See Rose v. Lundy, 455 U.S. 509, 510 (1982). Under
Rhines v. Weber, 544 U.S. 269, 278 (2005), the Court
should grant a stay to allow the petitioner to return to
state court to exhaust his claims when “the petitioner
had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally
dilatory litigation tactics.” See also Purvis v.
United States, 662 F.3d 939, 944 (7th Cir. 2011)
(applying Rhines to a mixed petition brought under
28 U.S.C. § 2255). The Court should also allow the
petitioner to amend his petition to remove any unexhausted
claims before dismissing the petition. Rhines, 544
U.S. at 278. A petitioner exhausts his constitutional 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. ...