United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
March 26, 2018, the Court screened Petitioner Gregory Tyson
Below's (“Below”) petition. (Docket #6). The
Court determined that Below presented a “mixed”
petition, where his state court remedies were exhausted as to
some of the grounds for relief, but not others. Id.
at 3-5. The Court ordered Below to either dismiss this action
to exhaust his unexhausted claims, or to file an amended
petition which advanced only the exhausted claims.
Id. at 5. Alternatively, Below also requested a stay
and abeyance of his petition so he could return to state
court and exhaust all of his claims. (Docket #2). The Court
determined that he did not demonstrate good cause for failing
to exhaust the claims, and so denied the request for a stay.
(Docket #6 at 6-8).
April 4, 2018, Below filed a motion for reconsideration of
the Court's denial of his motion for a stay and abeyance.
(Docket #8). Though Below cites no law in support of his
request, only one procedural rule could apply. Federal Rule
of Civil Procedure (“FRCP”) 60(b) offers relief
from a court's orders or judgments if a party can show
“the narrow grounds of mistake, inadvertence, surprise,
excusable neglect, newly discovered evidence, voidness, or
‘any other reason justifying relief from the operation
of the judgment.'” Tylon v. City of
Chicago, 97 Fed.Appx. 680, 681 (7th Cir. 2004) (quoting
FRCP 60(b)(6)). Such relief “is an extraordinary remedy
and is granted only in exceptional circumstances.”
Harrington v. City of Chicago, 443 F.3d 542, 546
(7th Cir. 2006).
motion falls far short of demonstrating exceptional
circumstances. He merely reiterates certain reasons why he
believes aspects of his delay should be excused. None of
those reasons are inconsistent with the Court's analysis
in its original screening order. In the end, simply asserting
“that the . . . court's underlying judgment was
wrong . . . is an impermissible use of Rule 60(b).”
Tylon, 97 Fed.Appx. at 681. That is precisely what
Below does here. His motion for reconsideration will be
the motion for reconsideration was pending, Below submitted a
number of other filings. On April 5, 2018, he filed a letter
asking various questions of the Court about dismissing this
case and the statute of limitations. (Docket #9). The Court
cannot act as Below's legal advisor and is therefore
unable to answer either question. Next, on April 18, 2018,
Below filed a letter stating that he would like to proceed
only on his exhausted claims in the event his motion for
reconsideration was denied. (Docket #10). He also filed an
amended petition. (Docket #11 and #12).
did with his original petition, the Court must screen
Below's amended petition under Rule 4 of the Rules
Governing § 2254 cases. Below's amended petition
offers only the exhausted claims identified in the Court
original screening order, albeit with some additional factual
explication. (Docket #11 at 37-43; Docket #6 at 4). As the
Court explained in that order, those claims also do not
appear to be procedurally defaulted or frivolous. (Docket #6
at 89). The Court will, therefore, order respondent to file
an answer to the amended petition.
IT IS ORDERED that Petitioner's motion
for reconsideration (Docket #8) be and the same is hereby
IS FURTHER ORDERED that the parties shall proceed in
accordance with the following schedule:
Within 30 days of entry of this order, the respondent shall
file either an appropriate motion seeking dismissal of this
action or answer the amended petition, complying with Rule 5
of the Rules Governing § 2254 Cases, and showing cause,
if any, why the writ should not issue; and
the respondent files an answer, then the parties should abide
by the following briefing schedule:
a. The petitioner shall have 60 days after the filing of the
respondent's answer within which to file a brief in
support of his amended petition, providing reasons why the
writ of habeas corpus should be issued. The petitioner is
reminded that, in accordance with 28 U.S.C. § 2248,
unless he disputes allegations made by the respondent in his
answer or motion to dismiss, those allegations “shall
be accepted as true except to the extent that the judge finds
from the evidence that they are not true.”
b. The respondent shall file an opposition brief, with
reasons why the writ of habeas corpus should not be issued,
within 60 days of service of petitioner's brief, or
within 120 days from the date of this order if no brief is
filed by petitioner.
c. The petitioner may then file a reply brief, if he wishes
to do so, within 30 days after the respondent has filed a
the respondent files a motion in lieu of an answer, then the
parties should abide ...