United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
January 4, 2019, the petitioner David Minnick
(“Minnick”) filed a 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). Minnick was charged in Kenosha County Circuit
Court in 2010 with a number of felonies related to his attack
on his then-wife. (Docket #1-3 at 2). Minnick struck her with
a gun and attempted to shoot her, then fired the weapon in
the neighborhood and into the home of his wife's parents,
grazing his father-in-law. Id. Minnick pleaded
guilty to most of the charges. (Docket #1 at 2). In June
2012, he was sentenced to 27 years' imprisonment, to be
followed by 17 years' extended supervision. Id.
He filed a direct appeal, which ended when the U.S. Supreme
Court denied certiorari in 2015, and a post-conviction
motion, which recently concluded with the denial of review by
the Wisconsin Supreme Court on April 9, 2019. Id. at
3- 5; (Docket #6).
Court stayed these proceedings on January 9, 2019, in order
to permit Minnick to finish the state court exhaustion
process. With the receipt of the Wisconsin Supreme
Court's denial of review of his post-conviction motion,
that process appears complete. The Court will, therefore,
lift the stay and proceed to screen the petition.
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
Minnick'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 Section 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 Cir. 2002)).
it appears Minnick's petition is timely. From the face of
the petition, Minnick expended 364 days of his allotted year
in between the denial of certiorari by the U.S. Supreme Court
and the filing of his post-conviction motion. (Docket #1 at
4). The pendency of that motion tolled the statute of
limitations. 28 U.S.C. § 2244(d)(2). Minnick then filed
this petition prior to the conclusion of his post-conviction
motion proceedings, and obtained a stay until the Wisconsin
Supreme Court could issue its order denying review. It
therefore appears that Petitioner complied with the time
constraints of Section 2244, if just barely.
court continues its Rule 4 review by examining Minnick'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
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. 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).
Minnick presents three claims for ineffective assistance of
counsel occurring throughout his criminal case in circuit
court and on his direct appeal. (Docket #1 at 6-8). According
to the documents in the record, it appears that Minnick
presented all of these claims to each level of Wisconsin
state court review. See Id. at 3-5; (Docket #6).
Accordingly, the Court cannot conclude that it
“plainly” appears from the record that Minnick
did not exhaust his claims. Therefore, it will not dismiss
the petition on this basis.
court next reviews Minnick's petition under Rule 4 to
determine whether he has procedurally defaulted on any of his
claims. Even though a constitutional claim in a federal
habeas petition has been exhausted, the court is still barred
from considering the claim if it has been procedurally
defaulted by the petitioner. See Mahaffey v.
Schomig, 294 F.3d 907, 915 (7th Cir. 2002) (citing
Boerckel v. O'Sullivan, 135 F.3d 1194, 1196-97
(7th Cir. 1998), rev'd on other grounds by
O'Sullivan v. Boerckel, 526 U.S. 838, 849 (1999)). A
state prisoner procedurally defaults on a constitutional
claim in a habeas petition when he fails to raise the claim
in the state's highest court in a timely fashion or in
the manner prescribed by state law. See
O'Sullivan, 526 U.S. at 848; Thomas v.
McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000). Here, on
the record before the Court, it appears that Minnick has not
procedurally defaulted on his claims.
Court concludes its Rule 4 review by screening for patently
frivolous and speculative claims in Minnick's federal
habeas petition. See Ray, 700 F.3d at 996 n.1
(citing Small, 998 F.2d at 414, for the proposition
that district courts may dismiss petitions that fail to state
a claim or are factually frivolous). Minnick's claims are
not patently frivolous and may state claims upon which relief
could be granted; if proven, Minnick's claims will show
that his conviction was unconstitutional and that he is
therefore entitled to habeas relief. Thus, the claim is not
so plainly without merit as to warrant dismissal at this
it does not plainly appear that Minnick's claims are
frivolous or speculative, the Court provides the following
schedule to govern this matter.
IT IS ORDERED that the stay in this action
be and the same is hereby LIFTED; and
IS FURTHER ORDERED that the parties shall proceed in