United States District Court, E.D. Wisconsin
LAVELLE C. JACKSON, SR., Petitioner,
WARDEN DAN WINKELSKI, Respondent.
ADELMAN, DISTRICT JUDGE.
Jackson was accused of repeatedly sexually assaulting his
pre-teen daughter. Before trial, his attorney moved for
permission to introduce evidence that the victim had made a
prior accusation against another of her mother's
boyfriends. ECF # 12-2 at 49. The trial court deferred ruling
until trial, id. at 66, 82, and then, on the day of
trial, barred Jackson from introducing such evidence,
id. at 90. Jackson was convicted. Jackson appealed
the decision to exclude the evidence, and the state court of
appeals affirmed. Jackson did not petition the state supreme
court for certiorari. Jackson claims that his appellate
counsel told him that a petition for certiorari would be
petitions this court for a writ of habeas corpus under 28
U.S.C. § 2254. His petition (which he has amended once)
is confusing but appears to assert the following claims that
his incarceration is unconstitutional: (1) the trial court
violated his 6th Amendment right to present a defense by
excluding evidence of the victim's prior sexual assault
allegations; (2) trial counsel was ineffective for failing to
secure the admission of the excluded evidence in a pretrial
motion; and (3) Jackson failed to seek certiorari review from
the state supreme court because his appellate counsel
filed his amended petition on September 24, 2018. On November
13, 2018, respondent Dan Winkelski moved to dismiss the
amended petition. Jackson did not respond to Winkelski's
motion within the 30 days prescribed by local rule. On March
28, 2019, I entered an order directing Jackson to file a
response by April 22, 2019 or risk dismissal of the case.
Instead of filing a response, Jackson filed his own motion on
April 11, 2019, seeking a stay and abeyance of this case so
that he might exhaust his remedies in state court. His motion
also seeks appointment of counsel and “a 280 day
extension of time” though it is unclear what deadline
he seeks to have extended. If granted a stay, he appears to
intend to attempt to exhaust his state claims by filing a
motion in state court under Wis.Stat. § 974.06, which
authorizes collateral attack on a state sentence on
constitutional or jurisdictional grounds at any time after
the initial time for appeal or postconviction remedy has
did not file any response to petitioner's motion for a
stay, but the brief in support of respondent's motion to
dismiss includes several preemptive arguments against a stay
of this action. The present order addresses both
petitioner's motion for stay and abeyance, and
respondent's motion to dismiss.
Required exhaustion of state remedies.
prisoner seeking habeas relief under § 2254 must exhaust
each of his claims in state court before bringing them to
federal court. 28 U.S.C. § 2254(b)(1)(A); Rhines v.
Weber, 544 U.S. 269, 276 (2005). In Rhines, the
Supreme Court recognized that a habeas petitioner whose claim
was dismissed in federal district court for failure to
exhaust state claims risked losing all opportunity for
federal review because of the 1-year statute of limitations
for federal habeas claims. Id. at 274-275. Thus, the
Supreme Court authorized district courts in appropriate
circumstances to grant a stay and abeyance of habeas
petitions so that the petitioner might exhaust state remedies
before returning to federal court. Id. at 275. A
stay and abeyance of a habeas action is appropriate when
“the petitioner had good cause for his failure to
exhaust all claims and the unexhausted claims have some
possible merit.” Dolis v. Chambers, 454 F.3d
721, 724 (7th Cir. 2006).
and abeyance of a habeas claim is appropriate only when a
petitioner still has remedies specific to that claim
available in state court. A different rule applies when a
state court declines to address a habeas claim because the
prisoner has failed to meet a state procedural requirement:
generally in such circumstances the habeas claim cannot then
be raised in federal court. Maples v. Thomas, 565
U.S. 266, 280 (2012). “The bar to federal review may be
lifted, however, if ‘the prisoner can demonstrate cause
for the procedural default in state court and actual
prejudice as a result of the alleged violation of federal
law.'” Id. (quoting Walker v.
Martin, 562 U.S. 307, 316 (2011). A prisoner can also
overcome procedural default if he can demonstrate that he is
“actually innocent.” Bousley v. United
States, 523 U.S. 614, 622 (1998). A claim for actual
innocence must be credible and founded on “new”
evidence, meaning evidence that was not before the trier of
fact. Arnold v. Dittman, 901 F.3d 830, 836-7 (7th
Cir. 2018). To establish actual innocence as a gateway to
review of an otherwise defaulted claim, the petitioner must
show that, “in light of this new evidence, it is more
likely than not that no reasonable juror would have found him
guilty beyond a reasonable doubt.” Id. at 837
(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
a district court may deny an application for a writ of habeas
corpus on its merits “notwithstanding the failure of
the applicant to exhaust the remedies available in the courts
of the state.” 28 U.S.C. § 2254(b)(2).
State post-conviction motions under Wis.Stat. § 974.06.
Wisconsin, the post-conviction motion procedure under §
974.06 is the “primary method in which a defendant can
attack his conviction after the time for appeal has
expired.” State v. Escalona-Naranjo, 185
Wis.2d 168, 176 (1994). A § 974.06 motion may not be
used to raise issues disposed of by a previous appeal.
Peterson v. State, 54 Wis.2d 370, 381 (1972).
Further, if a constitutional claim has not been raised in a
prior appeal or post-conviction motion, it cannot be raised
on a § 976.04 motion unless the court determines that
“sufficient reason” exists for the earlier
failure to allege or adequately raise the claim.
Escalona-Naranjo, 185 Wis. at 184.