United States District Court, E.D. Wisconsin
RONNIE L. FAMOUS, Petitioner,
SUSAN NOVAK, Respondent.
William C. Griesbach, Chief Judge
Ronnie L. Famous filed a petition pursuant to 28 U.S.C.
§ 2254 on August 17, 2010, asserting that his state
court conviction and sentence were imposed in violation of
the Constitution. While his petition is old, his conviction
is significantly older. Petitioner was convicted of four
counts of first-degree sexual assault of a child and one
count of exposing a child to harmful materials in Racine
County Circuit Court. He was initially sentenced to life
without parole, and on January 21, 2000, he was sentenced to
168 years of confinement. On October 28, 2010, Petitioner
filed two amended petitions and a motion for stay and
abeyance. After concluding that Petitioner failed to exhaust
his remedies in state court, the court ordered this case
stayed and administratively closed on January 31, 2011, to
allow Petitioner to pursue his unexhausted claims. Petitioner
has since appeared to have exhausted his state court
remedies, and on December 19, 2018, the case was transferred
to the undersigned. On February 13, 2019, Petitioner filed an
amended petition as well as a brief in support of his amended
petition. He has also filed a motion to file excess pages.
Because his brief does not exceed the thirty page limit, the
motion will be denied as moot.
give the case prompt initial consideration pursuant to Rule 4
of the Rules Governing § 2254 Cases, which reads:
If it plainly appears from 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 . . . .
Rules Governing § 2254 Cases. During my initial review
of habeas petitions, I look to see whether the petitioner has
set forth cognizable constitutional or federal law claims and
exhausted available state remedies.
asserts two grounds for relief. First, he alleges his
post-conviction counsel was ineffective in failing to argue
that trial counsel was ineffective for not calling three
alibi witnesses and in failing to investigate his claim that
his trial counsel retaliated against him and misrepresented
that the alibi witnesses refused to testify. Famous'
Wis.Stat. § 974.06 post-conviction motion contained
signed declarations from two witnesses asserting that they
planned to testify on Famous' behalf but were told by
Famous' trial counsel that he would not call them at
trial because their testimony would hurt Famous' case.
Famous contends that he told his post-conviction counsel that
trial counsel retaliated against him for having sought
counsel's discharge at trial. From the face of the
petition, the court cannot conclude that these claims lack
merit. Although there is generally no constitutional right to
effective post-conviction counsel during collateral
proceedings, see 28 U.S.C. § 2254(i), the court
questions whether filing a Wis.Stat. § 974.02
post-conviction motion is a collateral proceeding and
therefore outside the scope of § 2254(i). See Huusko
v. Jenkins, 556 F.3d 633, 635 (7th Cir. 2009).
Accordingly, Petitioner will be allowed to proceed on these
ineffective assistance of post-conviction counsel claims.
Petitioner claims the state courts violated his Fifth and
Sixth Amendment right to present a defense when they denied
his motion to subpoena witnesses for the Machner
hearing and when they failed to address his motion for a
continuance to provide the circuit court with the address of
one of the witnesses. At the Machner hearing, for
reasons that are not apparent, the circuit court did not
allow Famous to subpoena his purported alibi witnesses and
instead made findings based solely on the testimony of
post-conviction counsel and Famous. The court will allow
Famous to proceed on this ground as well.
though the court is unable to conclude that it is plainly
apparent that Petitioner is not entitled to relief, the court
notes that the petition may be barred by the statute of
limitations under 28 U.S.C. § 2244(d). According to the
records of the Wisconsin Court of Appeals and the Wisconsin
Supreme Court, Petitioner was sentenced on December 4, 1998.
It appears that large gaps of time may have elapsed when no
motion for State post-conviction or other collateral review
was pending. In any event, because the court cannot conclude
from the face of the petition that it is time-barred, the
respondent shall answer the petition.
IS THEREFORE ORDERED that this case is
IS FURTHER ORDERED that Petitioner's motion to
file excess pages (ECF No. 43) is DENIED AS
FURTHER IS ORDERED that within 60 days of the date
of this order respondent shall either file an appropriate
motion seeking dismissal or answer the petition, complying
with Rule 5 of the Rules Governing § 2254 Cases, and
showing cause, if any, why the writ should not issue.
IS FURTHER ORDERED that unless respondent files a
dispositive motion in lieu of an answer the parties shall
abide by the following schedule regarding the filing of
briefs on the merits of petitioner's claims: (1)
petitioner shall have 45 days following the filing of
respondent's answer within which to file his brief in
support of his petition; (2) respondent shall have 45 days
following the filing of petitioner's initial brief within
which to file a brief in opposition; and (3) petitioner shall
have 30 days following the filing of respondent's
opposition brief within which to file a reply brief, if any.
respondent files a dispositive motion in lieu of an answer,
this briefing schedule will be suspended and the briefing
schedule will instead be as follows: (1) petitioner shall
have 30 days following the filing of respondent's
dispositive motion and supporting initial brief within which
to file a brief in opposition; and (2) respondent shall have
15 days following the filing of petitioner's opposition
brief within which to file a reply brief, if any.
to Civil L.R. 7(f), the following page limitations apply:
briefs in support of or in opposition to the habeas petition
or a dispositive motion filed by respondent must not exceed
thirty pages and reply briefs must not exceed fifteen pages,
not counting any ...