United States District Court, E.D. Wisconsin
PRINCE F. RASHADA, Petitioner,
WARDEN RANDALL R. HEPP, Respondent.
ORDER ON PETITION FOR A WRIT OF HABEAS
WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE
F. Rashada, who is incarcerated pursuant to the judgment of a
Wisconsin Circuit Court, filed a petition for a writ of
habeas corpus. Rashada raises four grounds for relief. First,
his “post-conviction counsel was ineffective for not
filing a motion that trial counsel was ineffective
….” (ECF No. 1 at 5.) Second, his appellate
counsel was ineffective for not arguing that the evidence was
insufficient to support his conviction. (ECF No. 1 at 6-7.)
Third, his constitutional rights were violated when only
hearsay was presented at his preliminary hearing. (ECF No. 1
at 8.) Finally, in his fourth claim he again argues that his
appellate counsel was ineffective for failing to allege his
trial counsel was ineffective, but for different reasons than
those presented in his first claim. (ECF No. 1 at 10.)
of the Rules Governing Section 2254 Cases states:
If it plainly appears from 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, or to
take other action the judge may order.
habeas relief is available to state prisoners only after they
have exhausted their claims in state court. 28 U.S.C.
§§ 2254(b)(1), (c). Exhaustion of state remedies is
a prerequisite to consideration of each claim sought to be
presented in a federal habeas petition. Picard v.
Connor, 404 U.S. 270, 275-76 (1971). Exhaustion of state
court remedies is a threshold issue, Day v.
McDonough, 547 U.S. 198, 205 (2006), that a district
court may raise sua sponte, see U.S. ex rel.
Lockett v. Illinois Parole & Pardon Bd., 600 F.2d
116, 117 (7th Cir. 1979); Ta t e v. Borgen, 2005
U.S. Dist. LEXIS 48282 (E.D. Wis. July 26, 2005). Before
coming to federal court with a habeas claim, every level of
state court must first be given a “full and fair
opportunity” to adjudicate each of the prisoner's
constitutional claims. Moore v. Parke, 148 F.3d 705,
708 (7th Cir. 1998) (citing Picard v. Connor, 404
U.S. 270, 276 (1971)). A full opportunity means the
prisoner's claims were presented through “one
complete round of the State's established appellate
review process.” OʹSullivan v. Boerckel,
526 U.S. 838, 845 (1999). To fairly present claims
“both the operative facts and controlling law must be
put before the state courts.” Anderson v.
Benik, 471 F.3d 811, 814 (7th Cir. 2006) (citing
Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir.
before dismissing a petition for failure to exhaust at the
Rule 4 stage, a court should afford the petitioner an
opportunity to respond. Hill v. Braxton, 277 F.3d
701, 706 (4th Cir. 2002). There are exceptions, however-for
example, when it is clear that the petitioner has made no
effort to exhaust his state remedies. See, e.g., Belmares
v. Schmidt, 2016 U.S. Dist. LEXIS 114754 (E.D. Wis. Aug.
acknowledges he did not exhaust his remedies in state court
with respect to any of his claims. (ECF No. 1 at 6, 8, 9,
10.) The court has reviewed the records of the Wisconsin
Court of Appeals, available at
https://wscca.wicourts.gov, and confirmed that there
was only a single proceeding related to Rashada's present
conviction, see Appeal No. 2017AP002113-CR. The only
issue presented in his brief, and thus the only issue the
court of appeals addressed, was whether the circuit court
erred when it denied Rashada's post-conviction motion for
an in camera review of the victim's mental health
records. His explanation for his failure to exhaust is the
same as to each claim:
Defendant was represented by counsel who was ineffective and
failed to subject the prosecutionʹs case to meaningful
adversarial testing and provide fully competent effective
assistance. The courts thus relied on such representation,
regardless of the constitutional violations that were
involved in denying defendant a proper defense based on equal
clarification of this explanation is found in other points in
his petition. The court understands Rashada to be alleging
that he asked his appellate attorney to present certain
claims, but he refused. Rashada asked the circuit court for a
new attorney. It responded that it does not get involved in
disagreements about strategy but outlined the procedure to
follow if he was dissatisfied with his attorney. (ECF No. 1-1
at 3.) Thus, Rashada's claims were not included in his
might partially explain why Rashada did not offer his present
grounds for relief in his direct appeal. But it does not
explain why he has not subsequently sought relief in the
state courts through a collateral proceeding. If a defendant
believes his appellate counsel was ineffective, the
traditional means of presenting such a claim in Wisconsin is
by way of a Knight petition in the court of appeals.
See State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540
(1992). Rashada offers no explanation for his failure to
pursue this relief, or any other means that may provide
redress, see, e.g., Wis.Stat. § 974.06, for the
claims he includes in his petition.
it appears that Rashada has failed to exhaust his claims in
state court and his petition must be dismissed. However,
before dismissing the action, the court will give Rashada a
chance to show cause as to why this action should not be
IS THEREFORE ORDERED:
shall show cause no later than Au g ust 9,
2019 as to why his petition should not be dismissed.
If Rashada fails to respond by this deadline, ...