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Thomas v. Smith

United States District Court, E.D. Wisconsin

April 25, 2018

ERVIN W. THOMAS, Petitioner,
JUDY P. SMITH, Respondent.


          J. P. Stadtmueller, U.S. District Judge

         On 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 dismissed.[1]

         1. BACKGROUND

         For the 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. § 976.05(3)(a).

         On 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.

         On 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.

         During 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.

         Thomas 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.

         Thomas 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.

         Next, 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.

         Thomas 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.

         Thomas 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 mailroom log.

         2. ANALYSIS

         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 ...

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