United States District Court, E.D. Wisconsin
CORY D. BROWN, Petitioner,
WARDEN BOUGHTON, Respondent.
STADTMUELLER U.S. DISTRICT JUDGE.
Cory D. Brown (“Brown”) filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254,
alleging that his conviction and sentence were imposed in
violation of his constitutional rights. (Docket #3). The
Court screened that petition in an order dated March 5, 2018.
(Docket #7). The Court found that only one out of Brown's
three habeas claims was fully exhausted in the Wisconsin
state courts. Id. at 5-8. As such, the Court
instructed Brown to choose whether to dismiss the entire
petition to exhaust the unexhausted claims or delete the
unexhausted claims and proceed only on the exhausted claim.
Id. at 8-9.
filed a letter and an amended petition on April 4, 2018.
(Docket #11, #12). In the letter, Brown stated that he wished
to proceed only on his exhausted claim-namely, that his trial
attorney was constitutionally ineffective for failing to seek
a court-ordered mental health evaluation. (Docket #11 at 1).
Yet in the amended petition accompanying his letter, Brown
included not only this claim but three brand-new ones.
(Docket #12 at 6-9). The Court screened those new claims in
an order dated April 17, 2018, finding that all three new
claims ran afoul of the one-year statute of limitations for
Section 2254 claims. (Docket #13 at 3-5). The Court afforded
the parties an opportunity to brief the timeliness issue
before proceeding to the merits on any of the four claims in
the amended petition. Id.
accordance with the Court's briefing schedule, Respondent
filed a brief on May 21, 2018, addressing Brown's three
new claims. (Docket #16). First, says Respondent, the claims
are untimely and are not sufficiently closely related to
Brown's original claim so as to relate back to the date
the original petition was filed. Id. at 9-12. Nor,
in Respondent's view, could Brown qualify for equitable
tolling, as it does not appear that any extraordinary
circumstance outside his control prevented him from timely
asserting the claims. Id. at 12-14; Socha v.
Boughton, 763 F.3d 674, 683 (7th Cir. 2014). Further,
there was no evidence to support a claim of actual innocence,
another avenue to escape the limitations bar. (Docket #16 at
13-14); Gladney v. Pollard, 799 F.3d 889, 895-96
(7th Cir. 2015).
Respondent contends that Brown's new habeas claims are
procedurally defaulted. (Docket #16 at 4-6). According to the
state court record, on February 20, 2017, the Wisconsin Court
of Appeals affirmed Brown's convictions, accepted his
appellate counsel's no-merit report, and relieved his
counsel of further representation of Brown. (Docket #16-7).
On April 3, 2017, Brown filed a letter seeking an extension
of time to file a petition for review in the Wisconsin
Supreme Court. (Docket #16-8). The court denied that request,
noting that the 30-day period for filing a petition for
review cannot be enlarged and that Brown's letter was
filed after that deadline had expired. (Docket #16-9). Brown
never filed a petition for review.
thus never presented his federal habeas claims to the
Wisconsin Supreme Court. (Docket #16 at 5); Moore v.
Casperson, 345 F.3d 474, 484-85 (7th Cir. 2003).
Moreover, says Respondent, Brown cannot now raise them, as
Wisconsin law precludes a successive post-conviction motion
asserting grounds that could have been raised in a prior
motion. (Docket #16 at 6). Finally, Respondent argues that
the Wisconsin Supreme Court disposed of Brown's habeas
claims on an adequate and independent state law ground-the
untimeliness of his petition for review-which effectively
precludes habeas review in federal court. Id. at
7-9; Madyun v. Young, 852 F.2d 1029, 1035 (7th Cir.
1988); Buelow v. Dickey, 847 F.2d 420, 429 (7th Cir.
had until July 2, 2018 to file a response to Respondent's
brief on his three new claims. (Docket #13 at 5). The Court
warned both parties in its screening order that there would
be “no extensions of time granted for the filing of
these briefs.” Id. at 6. Brown did not heed
the warning; he has filed nothing in this matter since his
letter and amended petition of April 4. Because the deadline
set by the Court to address Respondent's contentions has
long since passed, the Court finds that Brown has conceded
all of Respondent's arguments. See Bonte v. U.S.
Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010);
Perotti v. Holt, 483 Fed.Appx. 272, 275 (7th Cir.
it would be highly unlikely that Brown could overcome the
numerous obstacles standing between him and a merits review
of his three new habeas claims, even had he timely filed a
response brief. Respondent's arguments concerning
procedural default and timeliness appear well-founded in the
law and the record. Thus, the Court will dismiss Brown's
three new habeas claims and order further proceedings as to
his one remaining claim.
IT IS ORDERED that Grounds One, Three, and
Four of Petitioner's amended petition for a writ of
habeas corpus (Docket #12) be and the same are hereby
DISMISSED as untimely and procedurally
IS FURTHER ORDERED that the parties shall proceed in
accordance with the following schedule with respect to
Petitioner's sole remaining claim, Ground Two of his
amended petition (Docket #12 at 7- 8):
Within thirty (30) days of entry of this Order, Respondent
shall file either an appropriate motion seeking dismissal of
this action or answer the amended petition, complying with
Rule 5 of the Rules Governing Section 2254 Cases, and showing
cause, if any, why the writ should not issue; and 2. If
Respondent files an answer, then the parties should abide by
the following briefing schedule:
a. Petitioner shall have sixty (60) days after the filing of
Respondent's answer within which to file a brief in
support of his petition, providing reasons why the writ of
habeas corpus should be issued. Petitioner is reminded that,
in accordance with 28 U.S.C. § 2248, unless he disputes
allegations made by Respondent in his answer or motion to
dismiss, those allegations “shall be accepted as true
except to the extent that the judge finds from the evidence
that they are not true.”
b. Respondent shall file an opposition brief, with reasons
why the writ of habeas corpus should not be issued, within
sixty (60) days of service of Petitioner's brief, or
within one hundred twenty (120) days from the date of this
Order if no brief is filed by Petitioner.
c. Petitioner may then file a reply brief, if he wishes to do
so, within thirty (30) days after Respondent has ...