United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, CHIEF JUDGE
Danny Wilber filed a petition for habeas corpus relief under
28 U.S.C. § 2254 on March 9, 2010. Petitioner was
convicted of first-degree intentional homicide by use of a
dangerous weapon in connection with the shooting death of a
man at an after-hours house party. He filed his habeas
petition after completing his direct appeals in the Wisconsin
state court system. However, because the statute of
limitations pursuant to 28 U.S.C. § 2244(d)(1) was soon
expiring on his federal § 2254 petition, Petitioner also
filed a motion to stay the action so that he could exhaust an
unexhausted state claim. Petitioner stated he wished to file
a post-conviction motion pursuant to Wis.Stat. § 974.06
asserting that postconviction counsel was ineffective because
he failed to challenge trial counsel's ineffectiveness.
Finding his claims were not plainly meritless and that he had
not intentionally delayed or engaged in abusive litigation
tactics, the court granted the motion to stay on March 9,
2010, and administratively closed the case. Dkt. No. 4.
has since appeared to have exhausted his state court
remedies. The court will now reopen the case and screen the
petition. I must give the case prompt initial consideration
pursuant to Rule 4 of the Rules Governing § 2254 Cases,
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 Petitioner has set
forth cognizable constitutional or federal law claims and
exhausted available state remedies.
asserts three grounds for relief. First, Petitioner alleges
that the state court erred when it allowed the prosecutor to
present the remnants of burned shoes that were recovered from
an outdoor grill in Petitioner's yard as evidence.
Petitioner claims that the prosecution used this evidence to
argue that Petitioner intended to destroy evidence, which
showed consciousness of guilt, even though there was noting
to connect Petitioner to the shoes. Second, Petitioner
asserts that his constitutional right to a fair trial was
violated when the trial court required that he be restrained
to a wheelchair in a way that was visible to the jury during
closing arguments. Finally, Petitioner asserts that
postconviction counsel was ineffective for failing to raise
trial counsel's ineffectiveness in conducting an
investigation. From the face of the petition, the court
cannot conclude that these claims lack merit. Accordingly,
Petitioner will be allowed to proceed on these claims.
Petitioner has indicated his intent to amend his petition.
Any amended petition should be filed within thirty days of
the date of this order.
IS THEREFORE ORDERED that this case is
IS FURTHER ORDERED that any amended petition must be
filed within 30 days of the date of this order.
IS FURTHER 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 Petitioner shall have 30
days following the filing of Respondent's answer within
which to file a reply brief. Once a reply brief is filed, the
court will determine whether further briefing is required.
IS FURTHER ORDERED that, if Respondent files a
dispositive motion in lieu of an answer, this briefing
schedule will be suspended and the briefing schedule will
instead by 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 caption, cover page, table of contents,
table of authorities, and/or signature block.
IS FURTHER ORDERED that, pursuant to the Prisoner
E-Filing Program, Petitioner shall submit all correspondence
and case filings to institution staff, who will scan and
e-mail documents to the court. The Prisoner E-Filing Program
is in effect at Columbia Correctional Institution, Dodge
Correctional Institution, Green Bay Correctional Institution,
Oshkosh Correctional Institution, Waupun Correctional
Institution, and Wisconsin Secure Program Facility. If
Petitioner is no ...