United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
23, 2018, Petitioner Lavelle Jackson (“Jackson”),
proceeding pro se, filed a one-page document
captioned as a motion to stay a state court criminal case and
related appeal. (Docket #1). In the motion, Jackson-a
Wisconsin prisoner-suggests that he has lost in the Wisconsin
Court of Appeals and may be seeking further review of that
decision. Id. He says that he is using “due
diligence” but “does not . . . underst[an]d the
complex criminal justice system[.]” Id.
Jackson asks this Court for a “stay to allow him a
completed round to present his well establish[ed] Supreme
Court law claims in the State of Wisconsin.”
Id. In the caption, Jackson indicates that he wants
the stay in order to “protect his equal protection
right to file a 28 U.S.C. § 2254.” Id.
motion must be denied for two reasons. First, to the extent
Jackson seeks an extension of time to file a federal habeas
petition under Section 2254, the Court cannot grant it, as
the time period is set by statute. A state prisoner in
custody pursuant to a state court judgment has one year from
the date “the judgment became final” to seek
federal habeas relief. 28 U.S.C. § 2244(d)(1)(A). A
judgment becomes final within the meaning of Section
2244(d)(1)(A) when all direct criminal appeals in the state
courts are concluded followed by either the completion or
denial of certiorari proceedings in the U.S. Supreme Court,
or, if certiorari is not sought, at the expiration of the
ninety days allowed for filing for certiorari. Anderson
v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002). The
one-year limitations period may be tolled pursuant to the
provisions in 28 U.S.C. § 2244(d)(1)(B)-(D). See
Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999).
That period may also be equitably tolled if a state prisoner
encounters some impediment other than those covered in
Sections 2244(d)(1)(B)-(D) and (2) which prevents the filing
of the federal habeas petition. Taliani, 189 F.3d at
598; Johnson v. McCaughtry, 265 F.3d 559, 565 (7th
Cir. 2001). Equitable tolling excuses an untimely filing when
“extraordinary circumstances far beyond the
litigant's control. . .prevented timely filing.”
Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir.
if Jackson is seeking to bring a “protective”
habeas petition while he exhausts his state court remedies,
that request must be denied, as Jackson has not supplied the
minimum amount of information needed for the Court to
evaluate it against the applicable legal standards. The
Supreme Court has instructed prisoners who are unsure about
whether they have properly exhausted state remedies to file a
“‘protective' petition in federal court and
ask[ ] the federal court to stay and abey the federal habeas
proceedings until state remedies are exhausted.”
Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005);
see also Rhines v. Weber, 544 U.S. 269, 274-75
(2005). The Seventh Circuit instructs that such petitions
should usually be granted “whenever good cause is shown
and the claims are not plainly meritless[.]” Tucker
v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008);
Pace, 544 U.S. at 416 (“A petitioner's
reasonable confusion about whether a state filing would be
timely will ordinarily constitute ‘good cause' for
him to file in federal court.”).
a low threshold for a prospective habeas petitioner. But in
Jackson's case, all the Court has before it is his
one-page motion. There is no petition attached explaining the
nature of Jackson's conviction, sentence, appeal,
collateral attacks, or the habeas claims he wishes to assert.
The motion itself says nothing about these matters. As such,
the Court is totally unable to determine whether
Jackson's claims are plainly meritless or whether good
cause exists for granting a stay and abeyance. Consequently, the
Court is obliged to deny Jackson's motion and dismiss
IT IS ORDERED that Petitioner's motion
for a stay (Docket #1) be and the same is hereby
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED.
In any event, it appears that
Jackson's bid for federal habeas relief is doomed from
the outset. There are a number of procedural hurdles a
prospective habeas petitioner must pass in order for a
federal court to address their claims on the merits. One is
the statute of limitations described above. Another is
procedural default. A state prisoner may only seek relief
from his conviction in federal court if he has fairly
presented his claims to the state courts. Richardson v.
Lemke, 745 F.3d 258, 268-69 (7th Cir. 2014). Fair
presentment requires the prisoner to “assert that claim
throughout at least one complete round of state-court review,
whether on direct appeal of his conviction or in
post-conviction proceedings.” Id. at 268.
“The complete round requirement means that the
petitioner must raise the issue at each and every level in
the state court system, including levels at which review is
discretionary rather than mandatory.” Id. If
the prisoner fails to do this, the claim is procedurally
defaulted and cannot be heard in federal court.
In light of the language Jackson uses in his motion,
it appears he may know something about procedural default.
However, as it stands, his claims are defaulted. Review of
publicly available court records shows that Jackson was
convicted of repeatedly sexually assaulting his daughter.
State of Wisconsin v. Lavelle Jackson, Milwaukee
County Circuit Court No. 2011-CF-4561, available at:
https://wcca.wicourts.gov. He appealed, and the Court of
Appeals affirmed in August 2017. State of Wisconsin v.
Lavelle Jackson, 904 N.W.2d 143, 2017 WL 3730419 (Wis.
Ct. App. Aug. 29, 2017). To complete one round of state level
appeals, Jackson needed to file a petition for review with
the Wisconsin Supreme Court within thirty days of that
decision. Wis.Stat. §§ 809.62(1m)(a), 808.10(1).
There is no indication that he did so, either in the docket
of his appeal or his underlying criminal case. Whether or not
Jackson can correct this problem with further state court
proceedings is unclear, but at this stage, his claims are
procedurally defaulted and cannot be properly presented to a
Perhaps in recognition of the fact that
Jackson's filing was not accompanied by a habeas
petition-as is usually the case-the Clerk of the Court opened
this as a miscellaneous civil matter. That action must be