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Smith v. Pollard

United States District Court, E.D. Wisconsin

June 21, 2018

JOSHUA JOSEPH SMITH, Petitioner,
v.
WILLIAM POLLARD, Respondent.

          ORDER SCREENING HABEAS PETITION (DKT. NO. 1) AND REQUIRING THE RESPONDENT TO FILE AN ANSWER OR OTHERWISE RESPOND

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         On March 2, 2017, Joshua Joseph Smith, who is representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his March 7, 2013, judgment of conviction in Racine County Circuit Court for false imprisonment and mayhem. Dkt. No. 1. He has paid the $5.00 filing fee. This order screens the petition under Rule 4 of the Rules Governing Section 2254 Cases. Because it does not plainly appear from the face of the petition that the petitioner is not entitled to relief, the court will order the respondent to answer or otherwise respond.

         I. Procedural Background

         The petitioner says that he challenges his March 7, 2013 conviction in case number 2012CF756 in Racine County Circuit Court. Dkt. No. 1 at 2. The court reviewed the docket for that case on the Wisconsin Circuit Court Access Program, however, and it indicates that the petitioner was convicted on January 7, 2013 (having pled guilty to one count of false imprisonment and no contest to one count of mayhem). State v. Smith, No. 2012CF000756, Racine County Circuit Court (available at https://wcca.wicourts.gov). The docket shows that the petitioner was sentenced on March 5, 2013 to a term of fifteen years in custody and eighteen years of extended supervision. Id. The court entered judgment two days later. Id.

         The petition states that the petitioner did not file a direct appeal until May 27, 2015. Dkt. No. 1 at 3. It indicates that the petitioner argued that trial counsel was ineffective in failing to inform him of the defense of voluntary intoxication, and that the circuit court should have informed him that trial counsel could “discover defenses or mitigating circumstances.” Id. While this makes it appear as if the petitioner waited over two years to appeal his conviction, the WCCAP docket indicates that he may have pursued post-conviction relief earlier. The electronic docket indicates that the petitioner filed a notice of intent to pursue post-conviction relief on March 11, 2013, and a notice of appeal on December 5, 2013. State v. Smith, No. 2012CF000756, Racine County Circuit Court (available at https://wcca.wiscourts.gov). The court of appeals dismissed the appeal, but extended the time for filing a notice of appeal or a postconviction motion to November 25, 2014. Id. Additional orders granted extensions through May 27, 2015. Id.

         On May 27, 2015, the petitioner filed a motion to withdraw his no contest and guilty pleas. Id. The petitioner filed a pro se motion to supplement and the circuit court conducted several hearings. Id. The court denied the motion on September 24, 2015. Id. After receiving additional extensions from the Wisconsin Court of Appeals, the petitioner filed a notice of appeal on February 23, 2016. Id. The Wisconsin Court of Appeals affirmed the judgment of conviction on November 16, 2016. Id. The Wisconsin Supreme Court denied the petition for review on February 13, 2017. Id.; Dkt. No. 1 at 3. The petitioner filed his federal habeas petition on March 2, 2017. Dkt. No. 1.

         The electronic docket indicates that petitioner has continued to file motions in the state court, even after filing his federal petition. He filed a petition for sentence adjustment on June 12, 2017. Id. The circuit court denied the petitioner's motions on June 22, 3017 and September 8, 2017. Id. On March 15, 2018, the petitioner filed a motion for post-conviction relief, which was denied on March 21, 2018. Id. He filed another motion on April 18, 2018, which remains pending. Id.

         II. Rule 4 Screening

         A. Standard

         Rule 4 of the Rules Governing §2254 Proceedings provides:

If it plainly appears form the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion or other response within a fixed time, or to take other action the judge may order.

         A court allows a habeas petition to proceed unless it is clear to the court that the petitioner is not entitled to relief in the district court. At the screening stage, the court expresses no view of the merits of any of the petitioner's claims. Rather, the court reviews the petition and exhibits to determine whether the petitioner alleges that he is in custody in violation of the “Constitution or laws or treaties of the United States.” 28 U.S.C. §2254(a). If the state court denied the petition on the merits, this court can grant the petition only if the petitioner is in custody as a result of: (1) “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court;” or (2) “a decision that was based on an unreasonable application determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. §2254(d).

         The court also considers whether the petitioner filed within the limitations period, exhausted his state court remedies and avoided procedural default. Generally, a state prisoner must file his habeas petition within one year of the judgment becoming final. 28 U.S.C. §2254(d)(1)(A). In addition, the state prisoner must exhaust the remedies available in the state courts before the district court may consider the merits of his federal petition. 28 U.S.C. §2254(b)(1)(A). If the district court discovers that the petitioner has included an unexhausted claim, the petitioner either must return to state court to exhaust the claim or amend his petition to present only the exhausted claims. Rose v. Lundy, 455 U.S. 509, 510 (1982).

         Finally, even if a petitioner has exhausted a claim, the district court may still be barred from considering the claim if the petitioner failed to raise the claim in the state's highest court in a timely fashion or in the manner prescribed by the state's procedural laws. See O'Sullivan v. ...


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