United States District Court, E.D. Wisconsin
MARIES D. ADDISON, Plaintiff,
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
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
Judge Duffin's Recommendation (Dkt. No. 6)
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.
Standard of Review
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.
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[.]”
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.
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, ...