United States District Court, E.D. Wisconsin
JERRY L. WHEELER, Petitioner,
BRIAN FOSTER, Respondent.
ORDER GRANTING PETITIONER'S MOTION FOR
CLARIFICATION THAT THE STAY PROCEEDINGS HAVE BEEN LIFTED FOR
FINAL DECISION IN THE CASE AT BAR (DKT. NO. 48)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
and a half years ago, the petitioner filed this petition for
a writ of habeas corpus under 28 U.S.C. §2254.
Dkt. No. 1. At that time, William J. Pollard was the warden
of Waupun Correctional Institution, where the plaintiff is
incarcerated; Pollard answered the petition on December 11,
2013. Dkt. No. 13. The petitioner filed his brief in support
of the petition on February 7, 2014, dkt. no. 17, and the
respondent filed his brief on March 24, 2014, dkt. no. 18.
Less than a month after briefing concluded, however, the
petitioner filed a motion asking the court to stay the case.
Dkt. No. 19. The petitioner believed that he needed to go
back to state court to exhaust remedies on certain claims.
Id. at 2-3. On September 3, 2014, Chief Judge
William C. Griesbach, to whom the case was assigned at the
time, granted the petitioner's motion, but required that
by October 6, 2014, the petitioner provide proof that he had
filed the necessary pleadings in state court. Dkt. No. 31.
Pepper joined the district court in early December, 2014, and
the other judges divided their case loads and shared their
cases with her. On December 29, 2014, the petitioner's
case was reassigned from Judge Griesbach to Judge Pepper. On
May 8, 2015, Judge Pepper ordered that by June 30, 2015, the
petitioner should file a status report, letting the court
know how his case was going in state court. Dkt. No. 34. The
petitioner filed the status report on June 16, 2015; he
notified the court that the prison had denied his request for
a legal loan, and that this was hampering his ability to seek
review from the Wisconsin Supreme Court. Dkt. No. 37 at 18.
Judge Pepper ordered him to file another status report by
August 31, 2015. Dkt. No. 39 at 10. The petitioner filed
timely filed the status report, informing this court that the
Wisconsin Supreme Court had denied his petition for review as
untimely. Dkt. No. 42. He did not, however, ask the court to
lift the stay.
November 20, 2015, the respondent filed a letter addressed to
the Clerk of Court. Dkt. No. 44. The letter indicated that
the respondent felt that the appropriate next step would be
for the court to decide the petition on the briefs.
Id. Two weeks later, the clerk's office received
a letter from the petitioner, addressed to the Clerk of
Court. Dkt. No. 45. The five-page letter disagreed with the
respondent's statement in his November 20, 2015 letter
that the petitioner had “procedurally defaulted”
on the claims he'd gone back to state court to address.
April 19, 2018, the court received a motion from the
petitioner, asking the court to issue a final decision on the
merits of the petition. Dkt. No. 47. He pointed out that it
had been almost three years and he'd not received a
ruling. Id. Still, however, he did not ask the court
to lift the stay.
27, 2018, the court received the current motion from the
petitioner. Dkt. No. 48. He asked the court to clarify that
“the stay proceeding have been lifted for a final
decision in this case.” Id. He stated that if
for any reason the stay had not been lifted, he asked the
court to lift it and to issue a final decision. Id.
petitioner's case has been delayed for many reasons. One
of those reasons was the petitioner's own request that
the court stay the federal proceedings so that he could
return to state court. He made that request on April 18,
2014, did not get a decision from the Wisconsin Supreme Court
until July 20, 2015, and did not notify this court that the
state proceedings were over until August 10, 2015. Another
reason is that until the current motion, the petitioner never
has asked the court to lift the stay. Granted, the court
should have realized when it received his August 10, 2015
status report that there was no reason to stay proceedings
any further. But it did not. And because the respondent sent
a letter to the Clerk of Court, stating the opinion
that the case could proceed, and the petitioner responded to
that letter by filing his own letter to the Clerk of Court,
the judge-Judge Pepper-missed the fact that the
respondent was asking the court to do something. The final
reason that the petitioner's case has been delayed is due
to the court's heavy caseload.
court will grant the petitioner's request to clarify,
will clarify that the stay had not previously been
lifted and will grant the petitioner's request to lift
the stay. The court understands that the petitioner and the
respondent have been waiting a long time, and the court
regrets that. The court will try to issue an order on the
merits of the petitioner's claim as soon as it can.
court GRANTS the petitioner's motion for
clarification. Dkt. No. 48.
court ORDERS that the stay imposed by Judge
Griesbach on September 3, 2014 is LIFTED.
The court will issue a separate order on the merits of the
 Rule 2(a) of the Rules Governing
Section 2254 Cases in the United States District Court
requires that the respondent in a federal habeas
petition be the state officer who has custody of the
petitioner. Because Brian Foster is now the warden at Waupun,
the court has substituted his name for that of William J.
Pollard as respondent. ...