United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
April 16, 2018, Petitioner Dwayne Freeman
(“Freeman”) 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 and laws of the United States. (Docket #1). The
Court will now turn to screening the petition under Rule 4 of
the Rules Governing Section 2254 Proceedings. That Rule
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). Under Rule 4, the Court
analyzes preliminary obstacles to review, such as whether the
petitioner has complied with the statute of limitations,
exhausted available state remedies, avoided procedural
default, and set forth cognizable claims.
February 18, 2015, a jury found Freeman guilty of armed
robbery, burglary, and possession of a firearm by a felon, in
Milwaukee County Circuit Court No. 2014CF003400. On March 24,
2015, he was sentenced. As to the armed robbery charge, the
court sentenced him to eight years, five of initial
confinement and three on extended supervision, consecutive to
the other counts. Similarly, on the burglary charge, the
court sentenced Freeman to six years of initial confinement
and three years of supervision, for a total of nine years,
consecutive to all other counts. Finally, on the felon in
possession count, the court sentenced him to six years,
including three years of initial confinement and three years
of extended supervision. This final sentence was set to run
concurrently to the others. In sum, then, Freeman was to be
confined for an initial period of at least eleven years.
judgment of conviction was issued on April 1, 2015. Freeman
filed a notice of intent to pursue post-conviction relief
that same day. The motion for post-conviction relief was not
actually filed until January 6, 2016. It was denied in the
trial court five days later, on January 11, 2016. Freeman
took an appeal from that decision. The Wisconsin Court of
Appeals affirmed the judgment of conviction, the sentence,
and the denial of post-conviction relief in an order dated
February 28, 2017. State v. Freeman, 896 N.W.2d 391,
2017 WL 889734 (Wis. Ct. App. Feb. 28, 2017). The Wisconsin
Supreme Court denied Freeman's petition for discretionary
review on June 12, 2017. State v. Freeman, 899
N.W.2d 704 (Wis. 2017).
of its Rule 4 review, the Court first considers the
timeliness of the 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 Section 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 ninety days allowed for
filing for certiorari. See Ray v. Clements, 700 F.3d
993, 1003 (7th Cir. 2012).
it appears the petition is timely. Freeman initiated his
appeal and post-conviction proceedings immediately upon entry
of the judgment of conviction. His habeas clock began to run
on September 10, 2017, ninety days after the Wisconsin
Supreme Court denied discretionary review. Far less than one
year has elapsed between that date and the filing of this
petition on April 16, 2018. Thus, the Court cannot say that
the petition is plainly barred by the statute of limitations.
the Court analyzes whether Freeman fully exhausted his state
court remedies. A district court may not address claims
raised in a 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). A petitioner exhausts his
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 to
that court again. Humphrey v. Cady, 405 U.S. 504,
516 n.18 (1972).
Freeman appears to have exhausted his remedies as to each of
the two claims he raises in his petition. First, Freeman
alleges that he received ineffective assistance of trial
counsel because his trial lawyer did not comply with the
procedural prerequisites necessary to introduce Freeman's
alibi witnesses, including disclosing that testimony to the
State thirty days prior to trial. (Docket #1 at 6-7). Second,
Freeman asserts that the trial judge violated his due-process
rights by excluding the testimony of his alibi witnesses.
Id. at 7. Here, he theorizes that these witnesses
were not planning to testify to an “alibi” as
that term is construed in Wisconsin law, and so his
lawyer's failure to abide by the procedural mechanisms to
introduce such evidence did not matter. Id. In
Freeman's view, the court misconstrued the potential
testimony as alibi testimony. Id.
appears, at least at this early stage, that both of these
claims have been exhausted. His present theory of ineffective
assistance, arising from the failure to timely notify the
State about the potential alibi witnesses, was one of several
ineffectiveness theories he advanced in the Wisconsin courts.
See Freeman, 2017 WL 889734, at *4-5. Further, while
the Court of Appeals analyzed his second claim about the
trial court's exclusion of evidence under principles of
relevance, not due process, Freeman seems to have argued the
point to the court. Id. at *3. To the extent Freeman
presented a different legal theory to the Wisconsin courts
than he presents to this Court now, that could give rise to
an exhaustion problem. Anderson v. Benik,
471 F.3d 811, 815 (7th Cir. 2006). But on the face of the
petition, it is not clear that such a problem exists, so the
Court will leave it to Respondent to make that argument if it
is supported by the evidence.
Court will now analyze whether Freeman has procedurally
defaulted on either of his claims. “A habeas petitioner
who has exhausted his state court remedies without properly
asserting his federal claim at each level of state court
review has procedurally defaulted that claim.”
Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir.
2004). Functionally, procedural default arises when the
petitioner either (1) failed to present his claim to the
state courts and it is clear that those courts would now hold
the claim procedurally barred, or (2) presented his claim to
the state courts but the state court dismissed the claim on
an independent and adequate state procedural ground.
Perruquet, 390 F.3d at 514; Moore v.
Bryant, 295 F.3d 771, 774 (7th Cir. 2002); Chambers
v. McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001).
Neither circumstance appears to have arisen in this case, and
so the Court will not dismiss Freeman's claims at this
time on the basis of procedural default.
Court concludes its Rule 4 review by screening for patently
frivolous claims in Freeman's petition. Ray, 700
F.3d at 996 n.1. Without expressing any opinion as to the
potential merit of his claims, it does not plainly appear
that they are frivolous.
IT IS ORDERED that Petitioner's motion
for leave to proceed without prepayment of the filing fee
(Docket #2) be and the same is hereby DENIED as
IS FURTHER ORDERED that the parties shall proceed in
accordance with the following schedule:
Within thirty (30) days of entry of this Order, Respondent
shall file either an appropriate motion seeking dismissal of
this action or answer the petition, complying with Rule 5 of
the Rules Governing Section 2254 ...