United States District Court, E.D. Wisconsin
ERVIN W. THOMAS, Petitioner,
JUDY P. SMITH, Respondent.
Stadtmueller, U.S. District Judge
December 29, 2017, the Court screened the habeas petition of
Petitioner Ervin W. Thomas (“Thomas”). (Docket
#4). The Court determined that the petition appeared to be
untimely and ordered further briefing on the issue.
Id. at 7-9. The parties have fully briefed the
matter, and for the reasons stated below, the Court finds
that the petition is untimely and must be
benefit of the reader, the Court reproduces much of its
recitation of the facts from the screening order. Thomas'
petition focuses on the Interstate Agreement on Detainers
(“IAD”), codified in Wisconsin in Wis.Stat.
§ 976.05, which requires a defendant to be brought to
trial within 180 days of a demand for the same. “The
IAD is a congressionally approved interstate compact that
establishes procedures for the transfer of a prisoner in one
jurisdiction to the temporary custody of another.”
States v. Thomas, 834 N.W.2d 425, 429 (Wis. Ct. App.
2013) (quotation omitted). Central to this case is when
Thomas' notice invoking his IAD speedy-trial right was
considered to be received by the Milwaukee County District
Attorney's Office. See Wis. Stat. §
August 27, 2009, Thomas was charged in Milwaukee County
Circuit Court with kidnapping, second-degree sexual assault,
and sexual assault of a child under sixteen years of age. A
warrant was issued the same day.
March 10, 2010, the warden of the Illinois prison where
Thomas was serving another sentence wrote a letter to the
Milwaukee County District Attorney, informing him that Thomas
had completed several forms requesting a speedy trial under
the IAD. Certified mail return receipts show that on March
15, 2010, an employee for Information Management Services
Distribution (“IMSD”)-the mailroom service for
the Milwaukee County office building containing the district
attorney's office-received Thomas's speedy-trial
request under the IAD. The request was then directed to the
district attorney's office, where it was received on
March 18, 2010.
the course of the prosecution, the parties argued when the
IAD clock would expire. The trial court, having received the
March 18 filed-stamped IAD request from the district attorney
and not the March 15 certified mail return receipt from IMSD,
ruled that the clock did not begin to run until March 18. On
September 13, 2010, the date on which trial was scheduled to
begin, Thomas pled guilty to kidnapping, in violation of
Wis.Stat. § 940.31(1)(a), and second degree sexual
assault of a child, in violation of Wis.Stat. §
940.02(2). His plea would have fallen within the IAD period
only if it began to run on March 18, not March 15. He filed a
motion in the trial court seeking to vacate his pleas once he
discovered the March 15 certified mail return receipt from
IMSD, but the trial court denied it, ruling that IMSD could
not be considered the district attorney's agent for
receipt of IAD notices.
was sentenced on August 31, 2011, to an indeterminate period
of eighteen years of imprisonment on the kidnapping count,
and to an indeterminate period of eighteen years of
imprisonment on the second-degree-sexual-assault-of-a-child
count, to be served concurrent to the kidnapping count, but
consecutive to any other sentence. The judgment of conviction
was entered that same day.
appealed on September 14, 2012, arguing that his rights under
the IAD had been violated because the IAD period began to run
on March 15, 2010. Alternatively, Thomas asserted that he
should not be responsible for the delay caused by the mail
service and should be permitted to rely on the date IMSD
received his notice. The Wisconsin Court of Appeals rejected
these arguments and affirmed the conviction in a decision
issued May 29, 2013. He filed a petition for discretionary
review of these issues in the Wisconsin Supreme Court on June
28, 2013. That request was denied on November 26, 2013.
Thomas sought reconsideration of the denial of discretionary
review, but the court denied this request on April 11, 2014.
Thomas did not file a petition for a writ of certiorari to
the U.S. Supreme Court.
on November 14, 2014, Thomas, now proceeding pro se,
filed a motion for post-conviction relief pursuant to
Wis.Stat. § 974.06. The motion raised several arguments,
including: (1) that Thomas was denied the effective
assistance of counsel at trial and on appeal; (2) that
Thomas's IAD rights were violated; (3) that his trial
attorney was constitutionally ineffective for failing to
contact a state official regarding whether IMSD was
authorized to receive his IAD notice; and (4) that the State
withheld material and exculpatory evidence from him-namely,
the IMSD certified mail return receipt filed-stamped March
15, 2010. The trial court denied the motion on November 21,
2014. Thomas tried unsuccessfully to commence an appeal of
this ruling by filing the motion directly in the Court of
Appeals, and then again in the Wisconsin Supreme Court.
Neither court accepted the motion as a proper way to lodge an
appeal of the denial of post-conviction relief.
filed a second post-conviction motion on November 6, 2015,
this time with the assistance of a jailhouse lawyer. The
motion asserted a claim of newly discovered
evidence-specifically, a September 10, 2014 letter from the
Milwaukee County Office of Corporation Counsel relating to
IMSD's authority to accept mail for the district
attorney, and entries from signature logs in the district
attorney's office. That motion was denied on November 17,
2015 in the trial court under State v.
Escalona-Naranjo, 517 N.W.2d 157 (Wis. 1994), which bars
a prisoner from raising issues in a successive motion for
post-conviction relief that could have been raised in a prior
motion. His appeals therefrom were also unsuccessful. The
Wisconsin Court of Appeals affirmed the trial court's
ruling on March 15, 2017, and the Wisconsin Supreme Court
denied discretionary review on June 12, 2017. He sought
reconsideration of the Supreme Court's decision, but that
too was denied in an order dated June 30, 2017.
filed the instant petition on November 16, 2017. His claims
mirror those raised at various times in the state
proceedings. First, Thomas says that his trial and appellate
counsel were ineffective for failing to persuade the state
courts of the merits of his IAD claim. Second, Thomas
contends that the State withheld material and exculpatory
evidence from him in the form of the March 15 certified mail
receipt from IMSD. Third, Thomas raises a separate
ineffectiveness charge against his trial counsel, claiming
that counsel should have contacted IMSD prior to his guilty
plea and asked whether the IMSD employee who actually handled
Thomas' IAD notice was authorized to sign the certified
mail receipt for it. Fourth is Thomas' newly discovered
evidence claim, wherein he says he was entitled to renew his
IAD challenge once he received additional evidence suggesting
that the IAD notice was received in the district
attorney's office on March 15, 2010-i.e., the
merits of Thomas' petition are not presently before the
Court. The threshold question is whether Thomas' petition
was timely filed and, if not, whether that late filing may be
excused. For the reasons ...