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Jackson v. Winkelski

United States District Court, E.D. Wisconsin

July 24, 2019

LAVELLE C. JACKSON, SR., Petitioner,



         Lavelle 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 fruitless.

         Jackson 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 abandoned him.

         Jackson 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 lapsed.

         Respondent 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.


         A. Required exhaustion of state remedies.

         A 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).

         A stay 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)).

         Finally, 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).

         B. State post-conviction motions under Wis.Stat. § 974.06.

         In 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.

         II. ...

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