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Below v. Foster

United States District Court, E.D. Wisconsin

March 26, 2018

GREGORY TYSON BELOW, Petitioner,
v.
BRIAN FOSTER, Respondent.

          ORDER

          J.P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         On December 7, 2017, the petitioner Gregory Tyson Below (“Below”) 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 was convicted on March 9, 2011, after proceeding to trial in Milwaukee County Circuit Court, on twenty-nine charges, including kidnapping, strangulation and suffocation, sexual assault, substantial battery, reckless injury, and one count of solicitation of prostitutes. See Id. at 2. He was sentenced to 218 years of initial confinement and 96 years of supervision. Id. Along with his petition for a writ of habeas corpus, Below has also filed a motion for a stay and abeyance of this action while he returns to the Wisconsin state courts to properly exhaust certain of the claims he seeks to present here. (Docket #2).

         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). Upon an initial Rule 4 review of habeas petitions, the court will analyze whether the petitioner has avoided statute of limitations bars, exhausted available state remedies, avoided procedural default, and set forth cognizable constitutional or federal law claims.

         In the balance of this Order, the Court will conduct a Rule 4 screening of Below's petition and address Below'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 Below'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 § 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 (2012) (citing Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002)).

         Here, it appears Below's petition is timely. From the face of the petition, it appears that Below's direct appeal concluded on September 14, 2016. (Docket #1 at 3). He did not file a petition for certiorari to the United States Supreme Court. Id. at 35. Thus, Below's one-year limitations clock began to run on December 14, 2016, the day following the ninety-day period for filing a certiorari petition. See Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002); see also 28 U.S.C. § 2244(d)(1)(A). Because the petition in this case was filed on December 7, 2017, it appears that Below satisfied the time constraints of Section 2244(d). Of course, if the Court's understanding is incorrect, Respondent remains free to raise the statute of limitations as a defense to Below's petition.

         2.2 Exhaustion of State Court Remedies

          The court continues its Rule 4 review by examining Below'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. Connor, 404 U.S. 270, 275 (1971); Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir. 2004)). Once the state's highest court has had a full and fair opportunity to pass upon the merits of the claim, a prisoner is not required to present it again to the state courts. Humphrey v. Cady, 405 U.S. 504, 516 n.18 (1972).

         Here, Below presents four grounds for relief that he claims have been properly exhausted: (1) the trial court erred in denying Below's request for a severance, which resulted in Below having one trial for more than forty charges alleged by nine different women; (2) the trial court erred in denying his motion to suppress evidence, including his DNA, obtained from a search warrant that was not supported by probable cause; (3) the trial court erred in denying his motion for in camera review of certain records; and (4) ineffective assistance of trial counsel based on evidentiary missteps. (Docket #1 at 37-43). According to the face of the petition, it appears that Below presented grounds one through four to each level of Wisconsin state court review. See id. Accordingly, the Court cannot conclude that it “plainly” appears from the record that Below did not exhaust these grounds.

         However, Below goes on in his petition to assert ten additional grounds for relief (grounds five through fourteen) that he concedes have not been exhausted. Id. at 43-47. Each of these ten grounds is ...


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