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Dengsavang v. Pollard

United States District Court, E.D. Wisconsin

March 21, 2018

MICHAEL S. DENGSAVANG, Petitioner,
v.
WILLIAM POLLARD, Respondent.

          ORDER

          J.P. STADTMUELLER U.S. DISTRICT JUDGE

         1. INTRODUCTION

         On 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).

         Rule 4 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.

         In the 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.

         2. ANALYSIS

         2.1 Statute of Limitations

         The 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)).

         Here, 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.

         However, 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).

         Thus, 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 Dengsavang's petition.

         2.2 Exhaustion of State Court Remedies

         The 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.”).

         If a 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. ...


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