United States District Court, W.D. Wisconsin
STANLEY J. MADAY, JR., Petitioner,
SECRETARY CATHY A. JESS, Respondent.
OPINION AND ORDER
Barbara B. Crabb District Judge
Stanley J. Maday, Jr. has filed a pro se petition for a writ
of habeas corpus under 28 U.S.C. § 2254. He challenges a
judgment of conviction entered on January 15, 2013, by the
Circuit Court for Columbia County, Wisconsin, on three counts
of first degree sexual assault of a child in Case No.
2011CF442. On October 24, 2018, I reviewed the petition under
Rule 4 of the Rules Governing Section 2254 Cases. Dkt. #8. I
explained that petitioner could not obtain relief on his
exhausted claim that his trial counsel was ineffective for
failing to object to testimony that the Wisconsin Court of
Appeals had concluded was admissible under state law.
Id. at 5-6.
petitioner's additional five claims, I explained that
several of the claims did not raise constitutional questions
that would provide a basis for federal habeas relief.
However, petitioner's claim of ineffective assistance of
counsel presented a potential constitutional claim that could
be reviewed by this court. Because his ineffective assistance
of counsel claim was undeveloped, I gave petitioner an
opportunity to supplement his petition to provide more
information about that claim.
has now responded by filing several supplements to his
petition, clarifying the basis for his ineffective assistance
of counsel claims and challenging the dismissal of his other
claims. Dkt. ##11, 12, 13, 14, 15, 16. After reviewing
petitioner's numerous filings, I am not persuaded that
the claims I dismissed previously provide any basis for
habeas relief. However, petitioner's claims that trial
and appellate counsel were ineffective raise constitutional
questions of potential merit. Additionally, petitioner has
shown good cause for his failure to exhaust these claims
earlier. Because petitioner has little time left on his
habeas clock, I will grant his request to stay his petition
and hold it in abeyance while he attempts to exhaust his
claims in state court.
initial matter, petitioner filed several motions for
reconsideration of my previous decision dismissing some of
the claims he included in his original petition. In
particular, petitioner challenges the dismissal of his claims
that (1) trial counsel was ineffective for failing to object
a social worker's testimony regarding the credibility of
the victim; (2) he has “newly discovered
evidence” regarding how memories are encoded; and (3)
the state failed to disclose evidence. Dkt. ##11, 14, 15.
However, petitioner's motions do not raise any new
arguments that I did not consider previously.
reasons explained already, petitioner's claim regarding
the social worker's testimony was resolved by the
Wisconsin Supreme Court on state law grounds. State v.
Maday, 2017 WI 28, ¶ 51, 374 Wis.2d 164, 193, 892
N.W.2d 611, 625. Because the Wisconsin Supreme Court
concluded that the social worker's testimony was properly
admitted under state law, petitioner cannot succeed on a
federal claim that his counsel's failure to object to the
testimony constituted ineffective assistance on his part.
Hough v. Anderson, 272 F.3d 878, 898 (7th Cir. 2001)
(“[Failing to object to admissible evidence cannot be a
professionally ‘unreasonable' action, nor can it
prejudice the defendant against whom the evidence was
claim that he has newly discovered evidence regarding memory
also does not present a claim that would warrant habeas
relief. “Claims of actual innocence based on newly
discovered evidence have never been held to state a ground
for federal habeas relief absent an independent
constitutional violation occurring in the underlying state
criminal proceeding.” Tabb v. Christianson,
855 F.3d 757, 764 (7th Cir. 2017). See also Johnson v.
Bett, 349 F.3d 1030, 1038 (7th Cir. 2003) (“For
claims based on newly discovered evidence to state a ground
for federal habeas relief, they must relate to a
constitutional violation independent of any claim of
innocence.”). Petitioner has not connected the
“new” evidence regarding memory coding to any
constitutional violation that occurred during his trial.
Therefore, this claim cannot provide a basis for habeas
petitioner's claim that the state failed to disclose that
a detective tried to get petitioner to confess and referred
to the victim as an “intelligent and very bright
child” does not provide a basis for relief. Petitioner
suggests that the detective's statements were relevant to
petitioner's and the victim's credibility, but these
isolated statements from a detective are not enough to
undermine the outcome of the trial. Strickler v.
Greene, 527 U.S. 263, 280 (1999) (government's
failure to disclose evidence is material only “if there
is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different”). For these reasons, petitioner
has not shown that his claims regarding the social
worker's testimony, new evidence or undisclosed evidence
could provide a basis for habeas relief.
other hand, petitioner's supplement to his petition
explaining in detail the basis for his claims that his trial
and appellate counsel were ineffective is more persuasive.
Dkt. #12. Petitioner identifies several ways in which his
trial counsel provided defective performance, including that
counsel (1) failed to present alibi evidence; (2) failed to
object to irrelevant and prejudicial testimony; (3) failed to
present evidence regarding petitioner's medical
conditions; (4) failed to present cell phone, email and
Facebook records showing the victim's and victim's
mother's communications with petitioner; (5) failed to
impeach the victim's and victim's mother's
testimony; (6) failed to impeach the detective's
testimony; (7) failed to call an expert witness; (8) failed
to challenge the qualifications of the expert witness called
by the state and the reliability of her testimony; (9) failed
to prepare petitioner for trial; and (10) failed to object to
improper closing argument. Id. Petitioner also
argues that appellate counsel was ineffective for failing to
challenge trial counsel's performance on appeal.
petitioner's ineffective assistance of counsel claims
raise constitutional claims that appear to have potential
merit, petitioner did not raise the majority of his claims
until he filed his motion for collateral relief under
Wis.Stat. § 974.06, which is still pending in the state
circuit court. State v. Maday, 2011CF442 (Columbia
County Cir. Ct.). Ordinarily, when a petitioner files a
federal habeas petition that includes claims he is currently
litigating in state court, this court would dismiss the
petition and instruct the petitioner to refile once his
claims are exhausted. As explained in my previous order,
however, petitioner would be at risk of filing a late
petition if I dismissed his petition now. Additionally, his
out-of-state incarceration has hampered his ability to
exhaust his claims earlier. Therefore, I will stay his
petition under Rhines v. Weber, 544 U.S. 269 (2005),
while petitioner exhausts his claims in state court.
some additional comments for petitioner's benefit: First,
the status of petitioner's § 974.06 motion is
unclear. My review of Wisconsin's online court records
indicates that petitioner has filed several briefs in support
of his motion, but that the state circuit court has not taken
any action on his motion. If this is accurate, petitioner
should write to the circuit court to insure that his motion
will be heard. If the circuit court has denied the motion
already or is declining to address it, petitioner should
consider whether he needs to seek review from the Wisconsin
Court of Appeals. Before this court can review
petitioner's claims, petitioner must present his claims
to the circuit court, court of appeals and Wisconsin Supreme
Court for review.
Wisconsin courts distinguish claims challenging the
effectiveness of post-conviction counsel from those
challenging the effectiveness of appellate counsel. Wis.Stat.
§ 974.06; State ex rel. Rothering v.
McCaughtry, 205 Wis.2d 675, 556 N.W.2d 136 (Ct. App.
1996) (describing procedure for challenging effectiveness of
post-conviction counsel); State v. Knight, 168
Wis.2d 509, 520, 484 N.W.2d 540, 544 (1992) (appellate
counsel). Petitioner should review these cases to make sure
that he follows the appropriate procedures for exhausting his
this court will not tread water with petitioner's federal
habeas petition indefinitely. Rhines, 544 U.S. at
277. I am granting the requested stay on the condition that,
after petitioner has completely exhausted his state court
remedies, he then has 30 days from the date of the last order
from the state courts in which to file a motion in this court
to lift the stay. If petitioner fails to meet this ...