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Ingram v. Pollard

United States District Court, E.D. Wisconsin

June 26, 2018

BILLY J. INGRAM, Petitioner,
v.
WILLIAM POLLARD, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 1), DENYING CERTIFICATE OF APPEALABILITY AND DISMISSING CASE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         On September 15, 2017, Billy J. Ingram, who is representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his August 1, 2013 judgment of conviction in Waukesha County Circuit Court for first-degree intentional homicide, armed robbery with use of force, possession of a firearm by a felon and possession of marijuana. 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 the petitioner had a full and fair opportunity to present his Fourth Amendment claim in the state courts, the court will deny his petition and dismiss this case.

         I. Background

         On June 6, 2013, a jury in Waukesha County convicted the petitioner of first-degree intentional homicide, armed robbery with use of force, possession of a firearm by a felon, and possession of marijuana. State v. Billy J. Ingram, No. 2012CF000774, Waukesha County Circuit Court, found at https://wcca.wicourts.gov. On August 1, 2013, the petitioner was sentenced to prison until September 18, 2071 on the homicide count; sentences for all of the other counts ran concurrently with that sentence. Id. The petitioner filed a direct appeal, arguing that the trial court erred in denying his pretrial motion to suppress evidence obtained as a result of what the petitioner alleges was an illegal search and seizure, as well as challenging the sufficiency of the evidence. Dkt. No. 1 at 3. The Wisconsin Court of Appeals affirmed the judgment of conviction on November 26, 2014. Id. The Wisconsin Supreme Court denied the petition for review on April 16, 2015. Id.

         On September 18, 2015, the petitioner filed a motion for post-conviction relief, arguing ineffective assistance of appellate counsel. Dkt. No. 1 at 4; Dkt. No. 1-1 at 11-12. The Waukesha County Circuit Court denied the motion on October 26, 2015. Dkt. No. 1 at 4-5. The petitioner appealed, and the Wisconsin Court of Appeals denied the petition on February 16, 2016. Id. at 5. The petitioner's exhibits confirm that he filed a petition for review with the Wisconsin Supreme Court, which was denied on June 15, 2016. Dkt. No. 1-1 at 16.

         On June 18, 2016, the petitioner filed a motion for a new trial in Waukesha County Circuit Court, arguing juror bias and ineffective assistance of counsel. Dkt. No. 1 at 5-6; Dkt. No. 1-1 at 18. The court denied the motion on September 12, 2016. Dkt. No. 1 at 6. On September 29, 2016, the petitioner appealed the denial of his motion for a new trial, and the Wisconsin Court of Appeals affirmed the circuit court's decision on August 9, 2017. Id. at 7; Dkt. No. 1-1 at 18, 25. The petitioner filed this federal habeas petition on September 15, 2017. Dkt. No. 1 at 1.

         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 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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