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McNeal v. McDermott

United States District Court, E.D. Wisconsin

October 9, 2019

JOEL MCNEAL, Petitioner,
v.
JENNIFER MCDERMOTT, Respondent.

          ORDER

          J.P. STADTMUELLER U.S. DISTRICT

         On 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.[1]

         According 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.[2] 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.

         As part 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)).

         The 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.

         Next, 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).

         Here, 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.

         In his 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 exhausted.

         The 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.

         The 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.

         Accordingly, 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 GRANTED;

         IT IS FURTHER ORDERED that Petitioner's motion to compel an order (Docket #10) be and the same is hereby DENIED as moot; and

         IT IS FURTHER ORDERED that the parties shall proceed in accordance with the following schedule:

         1. 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 ...


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