United States District Court, E.D. Wisconsin
ROBERT W. HUBER, JR., Petitioner,
WARDEN GARY BOUGHTON, Respondent.
Stadtmueller U.S. District Judge
January 7, 2019, Petitioner Robert W. Huber
(“Huber”) filed this petition pursuant to 28
U.S.C. § 2254, asserting that his state court conviction
and sentence were imposed in violation of the Constitution.
(Docket #1). After proceeding to trial in Milwaukee County
Circuit Court in May 2014, Huber was convicted of no less
than twenty-five felonies related to horrific acts of child
sexual abuse. Id. at 2. On August 29, 2014, Huber
was sentenced to 225 years' imprisonment, to be followed
by 135 years of extended supervision. Id. Huber
filed a combined direct appeal and post-conviction motion in
August 2016. Id. The appeal and motion were denied
in the circuit court and the denial was affirmed throughout
the state appellate courts. Id. at 2-3. Huber also
attempted to file a second motion for post-conviction relief
in December 2018, but as explained further below, it was not
heard by any court. Id. at 3-4.
of the Rules Governing § 2254 Cases in the United States
District Courts authorizes a district court to conduct an
initial screening of habeas corpus petitions and to dismiss a
petition summarily where “it plainly appears from the
face of the petition…that the petitioner is not
entitled to relief.” This rule provides the district
court the power to dismiss both those petitions that do not
state a claim upon which relief may be granted and those
petitions that are factually frivolous. See Small v.
Endicott, 998 F.2d 411, 414 (7th Cir. 1993). Upon an
initial Rule 4 review of habeas petitions, the court will
analyze whether the petitioner has avoided statute of
limitations bars, exhausted available state remedies, avoided
procedural default, and set forth cognizable constitutional
or federal law claims.
court begins its Rule 4 review by examining the timeliness of
Huber's petition. 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 § 2244(d)(1)(A) when all direct
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 90 days allowed for filing for certiorari.
See Ray v. Clements, 700 F.3d 993, 1003 (2012)
(citing Anderson v. Litscher, 281 F.3d 672, 675 (7th
it appears that Huber's petition is timely. Huber's
direct appeal concluded on January 9, 2018, when the
Wisconsin Supreme Court denied his petition for review.
(Docket #1 at 3). He did not file a petition for certiorari
to the United States Supreme Court. Id. at 4.
Because the petition in this case was filed on January 7,
2019, it appears to just barely satisfy the time constraints
of Section 2244(d).
court continues its Rule 4 review by examining Huber's
petition to determine whether he has exhausted his state
remedies. The district court may not address the merits of
the constitutional claims raised in a federal habeas petition
“unless the state courts have had a full and fair
opportunity to review them.” Farrell v. Lane,
939 F.2d 409, 410 (7th Cir. 1991). Accordingly, a state
prisoner is required to exhaust the remedies available in
state court before a district court will consider the merits
of a federal habeas petition. 28 U.S.C. § 2254(b)(1)(A);
Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir.
2001) (if petitioner “either failed to exhaust all
available state remedies or raise all claims before the state
courts, his petition must be denied without considering its
merits.”). A petitioner exhausts his constitutional
claim when he presents it to the highest state court for a
ruling on the merits. Lieberman v. Thomas, 505 F.3d
665, 669 (7th Cir. 2007) (citing Picard v. Connor,
404 U.S. 270, 275 (1971); Perruquet v. Briley, 390
F.3d 505, 513 (7th Cir. 2004)). Once the state's highest
court has had a full and fair opportunity to pass upon the
merits of the claim, a prisoner is not required to present it
again to the state courts. Humphrey v. Cady, 405
U.S. 504, 516 n.18 (1972).
presents numerous claims in his petition. It is useful to
categorize them by the method in which they were presented to
the state court. Two claims were presented in the combined
direct appeal and post-conviction motion. These were that the
circuit court had denied him his constitutional right to
proceed pro se at trial, and that the circuit court
had violated his right to a public trial by closing the
courtroom for a brief period while video of Huber's
graphic abusive acts was played for the jury. State of
Wisconsin v. Robert Wayne Huber, Jr., Case No.
2016-AP-1803, 2017 WL 5185473 *1 (Wis. Ct. App. Nov. 8,
2017). These claims appear to have been exhausted, as they
were denied in the Wisconsin Court of Appeals on their
merits, and the Wisconsin Supreme Court denied review.
See Id. at *1-4; State of Wisconsin v. Robert
Wayne Huber, Jr., Case No. 2016-AP-1803, 908 N.W.2d 820
(Wis. Jan. 8, 2018) (summarily denying petition for review).
presents numerous other claims, including ineffective
assistance of trial and appellate counsel, insufficient
evidence to support his convictions, instructional error, and
allegations that the circuit court, prosecution, and defense
counsel colluded to ensure that Huber would be convicted.
See (Docket #1 at 4, 5-93). None of these claims
were addressed at any level of the state court system.
Rather, Huber explains that he attempted to present them via
the December 2018 motion. Id. at 3-4. The motion was
apparently captioned as one seeking habeas relief.
Id. However, Huber says that he received a letter
from a state court staff attorney in January 2019, explaining
that the motion had been converted from a habeas motion to
one seeking relief under Wis.Stat. § 974.06.
Id. at 4; (Docket #1-1 at 17) (a copy of the
letter). The motion was then returned unfiled because it was
longer than was permitted for a Section 974.06 motion.
(Docket #1-1 at 17). Huber now asserts that “none of
the issues presented in [his federal habeas petition] can be
addressed at the state level by any other means than by state
habeas corpus; which Huber tried to file, and the court
refused to accept.” Id. at 5.
the Court sympathizes with Huber's difficulty in
presenting these additional claims to the state court, that
difficulty does not excuse the exhaustion requirement. It is
clear that no level of the Wisconsin court system has
considered these claims, much less the Wisconsin Supreme
Court, and much less on the merits of the claims. Further,
Huber is required to abide by state court procedures in the
presentation of his claims. Thus, if the state court
determines that Huber's claims must be presented in a
Section 974.06 motion, that is the path he is required to
federal habeas petition has even a single unexhausted claim,
the district court may be required to dismiss the entire
petition and leave the petitioner with the choice of either
returning to state court to exhaust the claim or amending or
resubmitting the petition to present only exhausted claims.
See Rose v. Lundy, 455 U.S. 509, 510 (1982). Under
Rhines v. Weber, 544 U.S. 269, 278 (2005), the Court
should grant a stay to allow the petitioner to return to
state court to exhaust his claims when “the petitioner
had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally
dilatory litigation tactics.” See also Purvis v.
United States, 662 F.3d 939, 944 (7th Cir. 2011)
(applying Rhines to a mixed petition brought under
28 U.S.C. § 2255). The Court should also allow the
petitioner to amend his petition to remove any unexhausted
claims before dismissing the petition. Rhines, 544
U.S. at 278.
the Court must give Huber a choice. This choice, however,
will depend on the grounds upon which Huber seeks relief.
Either Huber can: (1) dismiss this petition in its entirety
in order to exhaust all his claims in state courts; (2) move
for a stay and abeyance while he returns to state court to
exhaust his unexhausted claims; or (3) elect to proceed on
only the exhausted claims described above. If he dismisses
the unexhausted claims, then the Court will be able to
consider only his exhausted claims.
Huber elects option (2) and wishes to maintain his
unexhausted claims and seek a stay and abeyance, he should
file a separate motion for a stay and abeyance. In that
motion, Huber will need to show that he “had good cause
for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation
tactics.” Rhines, 544 U.S. at 278. If Huber
elects option (3) and wishes to dismiss his unexhausted
claims and proceed only on his exhausted claims, then he
should: (a) file an amended petition which does not include
the unexhausted claims; and (b) file a separate letter
telling the Court that he wishes to proceed only on his
exhausted claims. Finally, if Huber elects option (1) and
seeks to dismiss this action in its entirety so that he may
exhaust his claims in the state court, he may notify the
Court of that decision by letter. The Court hereby warns
Huber that, if he proceeds only on the exhausted claims, he
may not be able to proceed on his other claim(s) in a second
or successive petition. See 28 U.S.C. §
course of action Huber elects to take, the Court will require
him to file his amended petition, motion, or letter as
described herein within thirty (30) days of
the entry of this Order. Finally, the Court notes that Huber
has filed a motion for leave to proceed in forma
pauperis. (Docket #2). The motion and his trust account
statement show that he receives little income, and that which
he receives is applied almost entirely to payments towards
restitution and other filing fees. (Docket #2 and #4). The
Court will, therefore, grant Huber's motion for leave to
proceed in forma pauperis and will not require him
to pre-pay the $5.00 filing fee in this matter.
IT IS ORDERED that, within thirty
(30) days of the entry of this Order, Petitioner
shall: (1) file a letter seeking dismissal of this action in
its entirety while he exhausts his claims in state court; (2)
move for a stay and abeyance of this action while he exhausts
his claims in state court; or (3) file a letter indicating
that he wishes to proceed only ...