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Addison v. Eckstein

United States District Court, E.D. Wisconsin

June 21, 2018

MARIES D. ADDISON, Plaintiff,
v.
WARDEN SCOTT ECKSTEIN, Defendant.

          ORDER OVERRULING PETITIONER'S OBJECTIONS TO REPORT AND RECOMMENDATION (DKT. NO. 7), ADOPTING MAGISTRATE JUDGE DUFFIN'S RECOMMENDATION (DKT. NO. 7) AND DISMISSING PETITION WITHOUT PREJUDICE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         On March 13, 2018, the petitioner, who is representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his November 21, 2012, judgment of conviction in Milwaukee County Circuit Court for multiple charges related to human trafficking and sexual assault. Dkt. No. 1. He paid the $5.00 filing fee. Two weeks later, Magistrate Judge William E. Duffin screened the petition under Rule 4 of the Rules Governing Section 2254 Cases, and recommended that this court dismiss the petition because the petitioner has appeals pending in the Wisconsin Court of Appeals. Dkt. No. 6. The petitioner filed timely objections to the recommendation. Dkt. No. 7. The court agrees with Judge Duffin's recommendation, adopts it and dismisses the petition.

         I. Background

         In 2011, the State of Wisconsin charged the defendant in three different felony cases: 2011CF002881, 2011CF001079, and 2011CF001664. Dkt. No. 1 at 2. The Milwaukee County Circuit Court joined the cases, and in August of 2012, a jury convicted the defendant on several of the charged counts. See “Verdict, ” docket entry 8-28-2012, State v. Addison, No. 2011CF002881 (Milwaukee County Circuit Court), located at https://wcca.wiscourts.gov. On November 16, 2012, the judge sentenced the petitioner to ninety-five years of confinement, followed by eighty years of extended supervision. Dkt. No. 1 at 2.

         The petition does not indicate when the petitioner filed his direct appeal, but the petitioner does say that he appealed. Dkt. No. 1 at 4. The Wisconsin Circuit Court Access Program indicates that the court of appeals extended the petitioner's time for filing a notice of appeal or postconviction motion multiple times before the petitioner finally filed his notice of appeal on January 4, 2018. See “Notice of appeal transmittal, ” docket entry 1-04-2018, States v. Addison, No. 2011CF002881 (Milwaukee County Circuit Court) located at https://wcca.wiscourts.gov. WCCAP also indicates that the appeal remains pending. Id.

         The petition raises six grounds for relief: (1) denial of speedy trial rights, dkt. no. 1 at 7-8; (2) ineffective assistance of pre-trial counsel, id. at 8-9; (3) invalid waiver of right to counsel, id. at 9; (4) denial of right to counsel, id. at 10; (5) violation of the petitioner's First Amendment right to practice his faith, id. at 11; and (6) denial of his right to a fair trial, id. at 11-12.

         II. Judge Duffin's Recommendation (Dkt. No. 6)

         Judge Duffin looked to the public records of the Wisconsin Court of Appeals and found that the petitioner's direct appeal of his conviction was still pending. Dkt. No. 6 at 2. Because the appeal remains pending, and because “[e]xhaustion of state remedies is a threshold requirement before a federal habeas court considers the merits of the petitioner's claims[, ]” id. at 2 (citing Day v. Mcdonough, 547 U.S. 198, 205 (2006)), Judge Duffin recommended that this court dismiss the petition without prejudice. Dkt. No. 6 at 2.

         III. Standard of Review

         Under Rule 12 of the Rules Governing Section 2254 Cases, the Federal Rules of Civil Procedure apply to habeas cases filed under 28 U.S.C. §2254. Under Federal Rule of Civil Procedure 72(b)(3), if a party objects to a magistrate judge's report and recommendation, the district court must conduct a de novo review of any portion of the recommendation to which the party properly objected. Fed.R.Civ.P. 72(b)(3). The district court may “accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.

         IV. Analysis

         The petitioner's stated reason for filing for habeas relief was “extreme direct appeal delays.” Dkt. No. 1 at 4. In his objection to Judge Duffin's recommendation, the petitioner argues that he “has in fact been prejudiced due to ‘delays' and ‘ineffective counsel, '” thereby “render[ing] [his] direct appeal process ineffective to protect his rights.” Dkt. No. 7 at 1. The petitioner argues that because the Wisconsin Court of Appeals has taken so long to decide his appeal, this court either should grant a conditional writ (“release the prisoner [if] the state does not decide the Petitioners appeal within a specific period”), or “order the State to decide the appeal.” Id. at 4. The petitioner says that the ineffective assistance of his attorney in state court “deprived him of an opportunity to pursue a meaningful direct appeal from his conviction[.]” Id.

         A person convicted in state court cannot seek relief in federal court via a writ of habeas corpus under 28 U.S.C. §2254 until that person first exhausts the remedies available to him in state court. 28 U.S.C. §§2254(b)(1)(A), (C). In other words, a federal habeas court may not consider the merits of a petitioner's claim until that petitioner exhausts his state remedies. Day v. McDonough, 547 U.S. 198, 205 (2006). The only exception to the exhaustion requirement is when “(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. §§2254(b)(1)(B)(i)-(ii).

         The petitioner has not argued that Wisconsin's post-conviction procedures are inadequate to adjudicate any of the six claims he raises in the petition. Rather, he indicates that the circumstances in his case-all of the delays in his appeal process-have rendered the process ineffective to protect his rights. But the Wisconsin Court of Appeals docket, accessible at https://wscca.wicourts.gov, shows that it was the petitioner who sought numerous extensions of time to file a postconviction notice or notice of appeal in the consolidated cases between March of 2015 and January 2018. State v. Maries D. Addison, Appeal No. 2018AP000055-CR (reflecting that the court granted the petitioner's requests for extensions on March 10, 2015; May 8, 2015; July 8, 2015; September 9, 2015; November 5, 2015; January 6, ...


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