United States District Court, E.D. Wisconsin
CORY D. BROWN, Petitioner,
WARDEN BOUGHTON, Respondent.
STADTMUELLER, U.S. DISTRICT JUDGE.
Cory D. Brown (“Brown”) filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254,
alleging that his conviction and sentence were imposed in
violation of the Constitution or federal law. (Docket #3).
The Court screened that petition in an order dated March 5,
2018. (Docket #7). The Court found that only one out of
Brown's three habeas claims was fully exhausted in the
Wisconsin state courts. Id. at 5-8. As such, the
Court gave Brown thirty days to choose whether to dismiss the
entire petition to exhaust the unexhausted claims or delete
the unexhausted claims and proceed only on the exhausted
claim. Id. at 8-9.
filed a letter and an amended petition on April 4, 2018.
(Docket #11, #12). In the letter, Brown states that he wishes
to proceed only on his exhausted claim-namely, that his trial
attorney was constitutionally ineffective for failing to seek
a court-ordered mental health evaluation. (Docket #11 at
noted above, the Court instructed Brown to delete any
unexhausted claims from his amended petition if he wished to
proceed on his exhausted claim. (Docket #7 at 8-9). He did
so, but he also added three new claims in his amended
petition. See (Docket #12 at 6-9). First, Brown says
that his trial attorney was ineffective for failing to obtain
an independent interview of the victim. Id. at 6.
Second, trial counsel should have, but did not, object to
certain testimony from a witness at trial on hearsay grounds.
Id. at 8. Third, Brown asserts that the instructions
given to the jury were inconsistent with the charging
document. Id. at 9.
the Court did not grant Brown leave to substantively amend
his grounds for habeas relief, such leave normally should be
freely granted, and the Court will do so in this instance.
See Fed. R. Civ. P. 15(a)(2). Before ordering Respondent
to respond to the amended petition, however, the Court must
screen the newly asserted clams under Rule 4 of the Rules
Governing Section 2554 Proceedings. The same legal standards
set forth in the Court's original screening order apply
here as well. See (Docket #7 at 2-13).
the elements of screening are easily addressed. First, there
appears to be no question that each of Brown's new claims
has been fully and properly exhausted in the state courts.
Brown plucked his new claims out of the set of claims he made
in his appeal and post-conviction proceedings. See State
v. Brown, 2016AP976-CRNM, 2017 WL 689685, at *1-7 (Wis.
Ct. App. Feb. 20, 2017). Further, the Wisconsin Court of
Appeals' decision does not hint at any procedural failing
in Brown's submissions. See Id. Thus, it seems
that Brown exhausted his state court remedies and did not run
into procedural default on these new claims. Dressler v.
McCaughtry, 238 F.3d 908, 912 (7th Cir. 2001); Lewis
v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004).
it does not appear that any of the three new claims are
plainly meritless. Two raise constitutional claims of
ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984), and the other
implicates Brown's due-process rights to fair notice of
the charges against him and fair jury instructions, see
Falconer v. Lane, 905 F.2d 1129, 1135 (7th Cir. 1990).
While the Court makes no comment on the strength of the
claims, it cannot say at this early juncture that they are
plainly without merit. See Ray v. Clements, 700 F.3d
993, 996 n.1 (7th Cir. 2012).
the Court must address the timeliness of Brown's three
new habeas claims. Brown's period in which to file a
federal habeas petition expired on March 20, 2018, as that
was one year from the date his state court judgment became
final. See (Docket #7 at 4-5); Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012). The instant amended
petition was filed on April 4, 2018, just over two weeks
after that period had elapsed. As such, the new claims appear
to be untimely.
Brown appears to have missed his deadline for filing these
new claims, that does not end the Court's analysis, since
he has several avenues by which he might overcome the statute
of limitations problem. First, he could show that his new
claims relate back to the date of his original petition under
Rule 15(c). See Fed. R. Civ. P. 15(c); Mayle v.
Felix, 545 U.S. 644, 663 (2005). This is not an easy
showing to make, as it “depends on the existence of a
common ‘core of operative facts' uniting the
original and newly asserted claims.” Mayle,
545 U.S. at 659. The relation-back doctrine is not broadly
applied to allow any claims related to the trial, conviction,
or sentence to relate back to the original petition.
“If claims asserted after the one-year period could be
revived simply because they relate to the same trial,
conviction, or sentence as a timely filed claim, [the]
limitation period would have slim significance.”
Id. at 662. Moreover, particularly relevant here,
several courts have concluded that one ineffective assistance
of counsel claim does not automatically relate back to
another if the factual bases for the claims are different.
See Vallar v. United States, No. 12-CV-534, 2013 WL
3147351, at *3 (N.D. Ill. June 19, 2013) (collecting cases).
untimeliness of a habeas petition can also be overcome by
either of two common-law exceptions to the limitations bar:
the “actual innocence” gateway and equitable
tolling. The actual innocence gateway allows excuse of a
procedural default when a petitioner “‘presents
evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is
also satisfied that the trial was free of nonharmless
error.'” Gladney v. Pollard, 799 F.3d 889,
896 (7th Cir. 2015) (quoting Schlup v. Delo, 513
U.S. 298, 316 (1995)). In other words, to be entitled to the
actual innocence gateway, Brown must show that new evidence
makes it unlikely that he would have been found guilty.
Id. at 896. The second common-law exception is
“equitable tolling.” See United States v.
Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). Equitable
tolling is “reserved for extraordinary circumstances
far beyond the litigant's control that prevented timely
filing.” Socha v. Boughton, 763 F.3d 674, 684
(7th Cir. 2014) (quotation omitted). To be entitled to
equitable tolling, a petitioner bears the burden of
establishing: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.”
Id. at 683-84; Holland v. Florida, 560 U.S.
631, 649 (2010).
be unlikely that Brown can successfully appeal to the
relation back doctrine, actual innocence, or equitable
tolling in order to save his newly asserted claims from the
limitations bar. Yet, given the liberal standard applied at
screening, the Court will not conclusively determine those
matters here. See Gildon v. Bowen, 384 F.3d 883, 886
(7th Cir. 2004) (courts generally should not dismiss habeas
petitions on timeliness grounds without soliciting argument
from the parties). Nevertheless, because of the high
procedural hurdle Thomas' new claims face, the Court
finds it most prudent to order briefing on the statute of
limitations issue prior to any argument on the merits of any
of the claims, including the original exhausted claim.
parties will, therefore, present their positions on the
timeliness of Brown's new claims in accordance with the
Respondent's opening brief:
June 1, 2018
July 2, 2018
July 17, 2018
dates are not subject to adjustment. Once briefing is
complete, the Court will make a final determination on the
timeliness issue. The Court will then order briefing on the
merits of ...