United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT
December 12, 2018, Petitioner Joel McNeal
(“McNeal”) filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, alleging that his
continued incarceration in the custody of the State of
Wisconsin is a violation of his constitutional rights.
(Docket #1). The Court will now turn to screening the
petition under Rule 4 of the Rules Governing Section 2254
Proceedings. Rule 4 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.” The 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). Under Rule 4, the Court
analyzes preliminary obstacles to review, such as whether the
petitioner has complied with the statute of limitations,
exhausted available state remedies, avoided procedural
default, and set forth cognizable claims.
to McNeal's petition and the state court docket, on
December 18, 2014, McNeal was found guilty of one count of
sexual assault, one count of strangulation and suffocation,
one count of false imprisonment, and two counts of victim
intimidation in Milwaukee County Circuit Court Case Nos.
2014CF2569 and 2014CF4618. He was sentenced on February 26, 2015,
and is currently serving a fourteen year prison sentence. On
March 6, 2015, he filed a notice of intent to pursue
post-conviction relief. On January 5, 2016, he filed a motion
for post-conviction relief and evidentiary hearing, which was
denied on March 9, 2016. On March 25, 2016, McNeal noticed an
appeal. The Court of Appeals affirmed the trial court's
decision on April 18, 2017. The Supreme Court denied review
on September 13, 2017. The Court of Appeals affirmed the
judgment on a remittitur on October 6, 2017.
of its Rule 4 review, the Court first considers the
timeliness of the 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 ninety days allowed for
filing for certiorari. See Ray v. Clements, 700 F.3d
993, 1003 (7th Cir. 2012). “In Wisconsin, a direct
challenge to a conviction becomes ‘final' the day
the [r]emittitur issues.” Balsewicz v.
Kingston, 425 F.3d 1029, 1032 (7th Cir. 2005) (citing
Wis.Stat. § 809.26; State ex rel. Fuentes v. Wis.
Ct. of App., 593 N.W.2d 48, 51 (1999)).
order affirming judgment on the remittitur issued on October
6, 2017, which means McNeal had 90 days after that date to
seek certiorari from the Supreme Court. The habeas clock
began to run the day after that period expired, on January 4,
2018. This petition was filed on December 12, 2018, putting
it within the one-year deadline prescribed by 28 U.S.C.
§ 2244(d)(1)(A). Accordingly, the petition is timely.
the Court analyzes whether McNeal fully exhausted his state
court remedies. A district court may not address claims
raised in a 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). A petitioner exhausts his
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 to
that court again. Humphrey v. Cady, 405 U.S. 504,
516 n.18 (1972).
McNeal appears to have exhausted his state court remedies. On
April 18, 2017, the Wisconsin Court of Appeals issued an
order affirming the convictions for second-degree sexual
assault; strangulation and suffocation; and false
imprisonment and the trial court's denial of McNeal's
motion for postconviction relief. State v. McNeal,
2016AP633, 2017 WL 1382890 (Wis. Ct. App. Apr. 18, 2017). The
Wisconsin Court of Appeals did not evaluate the two counts of
witness intimidation because they deemed those claims waived
when McNeal failed to advance any arguments in support of
them. Id. at *1 n.1. The Court addressed the
following asserted bases of ineffective assistance of
counsel: failure to impeach the victim; failure to
investigate a source of exculpatory testimony; failure to
request a pre-trial hearing to introduce evidence of prior
sexual history with the victim; and failure to expose the
victim's motive to lie. Id. at 1.
habeas petition, McNeal asserts the following grounds for
ineffective assistance of counsel: failure to impeach the
victim using police and medical reports and the petition for
a restraining order; failure to interview an exculpatory
witness; failure to introduce evidence of prior sexual
history with the victim; and failure to expose the
victim's motive to fabricate charges. (Docket #1 at 8-11;
McNeal, 2017 WL 1382890, at *8, *12- 15). Since the
record reflects that these are the issues that the Wisconsin
Court of Appeals considered and the Supreme Court declined to
review, the Court concludes that they have been fully
Court will now analyze whether McNeal has procedurally
defaulted on either of his claims. “A habeas petitioner
who has exhausted his state court remedies without properly
asserting his federal claim at each level of state court
review has procedurally defaulted that claim.”
Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir.
2004). Functionally, procedural default arises when the
petitioner either (1) failed to present his claim to the
state courts and it is clear that those courts would now hold
the claim procedurally barred, or (2) presented his claim to
the state courts but the state court dismissed the claim on
an independent and adequate state procedural ground.
Perruquet, 390 F.3d at 514; Moore v.
Bryant, 295 F.3d 771, 774 (7th Cir. 2002); Chambers
v. McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001).
Neither circumstance appears to have arisen in this case, and
so the Court will not dismiss McNeal's claims at this
time on the basis of procedural default.
Court concludes its Rule 4 review by screening for patently
frivolous claims in McNeal's petition. Ray, 700
F.3d at 996 n.1. Without expressing any opinion as to the
potential merit of his claims, it does not plainly appear
that they are frivolous.
IT IS ORDERED that Petitioner's motion
for leave to proceed without prepayment of the filing fee
(Docket #2) be and the same is hereby
IS FURTHER ORDERED that Petitioner's motion to
compel an order (Docket #10) be and the same is hereby
DENIED as moot; and
IS FURTHER ORDERED that the parties shall proceed in
accordance with the following schedule:
Within thirty (30) days of entry of this Order, Respondent
shall file either an appropriate motion seeking dismissal of
this action or answer the petition, complying with Rule 5 of
the Rules Governing Section 2254 ...