United States District Court, E.D. Wisconsin
DAVID A. HELTON, Petitioner,
GARY BOUGHTON, Warden, Respondent.
DECISION AND ORDER
William C. Griesbach, United States District Court Chief
31, 2015, Petitioner David Helton filed a petition pursuant
to 28 U.S.C. § 2254, asserting that his state court
conviction and sentence were imposed in violation of the
Constitution. In a December 21, 2015 order, the court found
that Helton had not exhausted most, if not all, of the
approximately 28 sub-issues contained in the first ground of
his petition. The court gave Helton two options: 1) he could
abandon the exhausted claims and proceed, or 2) the entire
petition would be dismissed without prejudice. After several
extensions of time without a response from Helton, the court
dismissed his petition without prejudice. ECF No. 25. Helton
appealed, and while the case was on appeal, the parties filed
a joint motion to remand the case back to the district court
to determine whether a stay should have been imposed under
Rhines v. Weber, 544 U.S. 269 (2005). ECF No. 35-1.
The Appellate Court granted the motion and remanded the case.
Id. Now before me is Helton's motion to stay his
petition under Rhines. For the reasons that follow,
Helton's motion will be denied.
a prisoner may bring a federal habeas petition challenging
his state conviction, he must raise and exhaust all of his
constitutional claims to each appropriate state court.
See Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir.
2004) (requiring constitutional claims to be brought to
each appropriate state court). A federal court may
not adjudicate mixed claims habeas petitions, or petitions
with both exhausted and unexhausted claims. Rose v.
Lundy, 455 U.S. 509 (1982). Thus, when a prisoner
submits a mixed claims habeas petition, he has three options:
1) he may abandoned his unexhausted claims and proceed only
on his exhausted claims; 2) the petition is dismissed without
prejudice; or 3) the petitioner may move the court to stay
and abeyance his petition until he has the opportunity to
exhaust his state court remedies. Rhines, 544 U.S.
at 269. In Rhines, the Supreme Court identified
three factors for courts to consider when determining whether
it should stay and hold a habeas petition in abeyance: 1)
whether there was good cause for the failure to exhaust; 2)
whether his unexhausted claims are meritorious; and 3)
whether there is any indication that the petitioner engaged
in intentionally dilatory litigation tactics. Id. at
the Seventh Circuit remanded the case, the court held a
telephonic hearing with all parties, where the
Rhines factors were discussed and Helton was ordered
to file a motion to stay his habeas proceedings applying the
Rhines factors. ECF No. 36. Rather than address the
factors, Helton makes a series of meritless arguments. First,
he alleges it would be an abuse of the court's discretion
not to grant a stay because the Seventh Circuit has already
ruled that his issues present a substantial showing. ECF No.
37 at 1. However, that is untrue; without ruling on any of
the merits the Seventh Circuit remanded the case for a stay
determination based on a motion by both parties. ECF No.
35-1. Next, Helton alleges that Judge Sankovitz returned his
Wisconsin Statute § 974.06 motion without acting upon it
because of some grand scheme to deny him judgment. However,
this argument, made without any factual support, is
borderline factually frivolous. See Edwards v.
Snyder, 478 F.3d 827, 830 (7th Cir. 2007) (explaining a
claim is “factually frivolous if its allegations are
bizarre, irrational or incredible”). Lastly, Helton
makes the conclusory statement his appellate counsel
illegally filed his no-merit report, and asks the court to
reread all of the documents he submitted to the various
Wisconsin courts and all of his previous briefings. The court
declines to do so. The court is not required to scour the
record for support of a party's arguments: “Judges
are not like pigs, hunting for truffles buried in [the
record].” United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991).
Helton has put forth no argument under the Rhines
factors as to why his habeas petition should be stayed and
held in abeyance. Moreover, even applying the Rhines
factors to the arguments Helton has put forward, there is not
sufficient reason in impose a stay. Helton has offered no
good cause for his failure to present these claims to the
state courts. Additionally, Helton's conclusory
allegation that his appellate counsel filed an illegal
no-merit report is insufficient to establish good cause
without any supporting factual allegations, especially given
Helton had several opportunities during the no merit process
to raise these claims. See ECF Nos. 16-4
(Helton's response letter to the no-merit report
demanding some 200 pages of discovery); 16-5 (Wisconsin Court
of Appeals order extending Helton's deadline to respond
to the no-merit report); 16-6 (Helton's supplemental
response). Similarly, Helton has put forth no argument as to
the meritoriousness of his unexhausted claims.
it appears that Helton has engaged in intentionally dilatory
litigation tactics. Helton alleges that he began drafting his
first post conviction motion under Wisconsin Statute §
974.06 in 2012, but he did not mail it until late 2017,
despite being warned that his claims were unexhausted by this
court in December 2015. Not only that but according to the
electronic court records for his conviction, Helton still has
not filed a post-conviction motion. Helton's only excuse for
his failure to file is his allegation that a state judge
received his motion, opened it, and mailed it back to him
without filing it and in doing so “slammed law and
justice in [his] face.” However, Helton provides no
evidence to support that he even properly mailed his motion.
Instead, his only evidence is a copy of a payment
authorization and an envelope addressed to him. Moreover,
Helton offers no explanation for why he did not attempt to
mail his § 974.06 motion again once it became evident
there was an issue with his original mailing. Instead of
sending the court another copy of his § 974.06 motion,
Helton chose to blame the judge assigned to his case-despite
there being no evidence the judge ever received the
documents. Additionally, even after Respondent filed its
response motion and addressed the Rhines factors,
Helton failed to file a reply or to address any of the
it was Helton's burden to show a stay was warranted and
he has failed to carry that burden. See Nken v.
Holder, 556 U.S. 418, 433-34 (2009) (explaining that the
party requesting the stay bears the burden of showing the
circumstances justify an exercise of discretion).
Accordingly, Helton now has two options: he may abandon his
unexhausted grounds (ground one) and proceed on the merits of
the exhausted grounds (grounds two through six) or the entire
petition may be dismissed without prejudice. The court
cautions Helton, however, that even if his petition is
dismissed without prejudice, a newly re-filed petition would
likely be untimely under 28 U.S.C. § 2244(d)(1)(A)
because although a state conviction proceeding tolls the
statute of limitations, the filing of a § 2254 petition
does not. Helton must inform the court of which option he
plans to pursue by June 22, 2018. Absent a response by
Helton, the court will proceed to decide the case on the
record as it now stands.
IS THEREFORE ORDERED that petitioner's motion
for stay & abeyance (ECF No. 37) is
IS FURTHER ORDER that petitioner has until
June 22, 2018, to respond to the court and indicate
whether he would like to continue on the merits of his
exhausted claims and abandon his unexhausted claims, or if he
would like the petition to be dismissed without prejudice.
 See Wisconsin Circuit Court
Access Record for Milwaukee County Case Number 2011CF002023,
No=40&index=0&mode=details#records (last visited May
 Helton was ordered to reply to
Respondent's response within 21 days. Respondent filed
its response on March 20, 2018. Helton's reply was due by
April 10, 2018. To this date, ...