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Brown-Troop v. McDermott

United States District Court, E.D. Wisconsin

October 19, 2019

SHAWN J. BROWN-TROOP, Petitioner,
v.
JENNIFER MCDERMOTT, Respondent.

          ORDER DENYING MOTION FOR STAY AND DISMISSING PETITION

          WILLIAM C. GRIESBACH, CHIEF JUDGE.

         On August 7, 2019, Petitioner Shawn Joseph Brown-Troop filed a petition for a writ of habeas corpus seeking federal relief from his state criminal convictions pursuant to 28 U.S.C. § 2254. Dkt. No. 1. In June of 2016, Brown-Troop was convicted of two counts of Armed Robbery While Masked in violation of Section 943.32 of the Wisconsin Statutes, and sentenced to concurrent terms of 23 years, consisting of thirteen years of confinement followed by ten years of extended supervision. His motion for postconviction relief was denied without a hearing, and both the order denying his motion and his conviction were affirmed by the Wisconsin Court of Appeals in an unpublished decision with a public domain cite of 2018 WI.App. 62. The Wisconsin Supreme Court denied Brown-Troop's petition for review on December 11, 2018, and his petition for certiorari review by the United States Supreme Court was denied on March 11, 2019.

         In his petition filed in this court, Brown-Troop asserted four separate grounds for relief, all arising under the Sixth Amendment right to counsel. Brown-Troop claims that his trial counsel provided ineffective assistance in (1) failing to move for suppression of his statement to the arresting officer; (2) failing to object to the testimony of a police officer explaining how his trained police dog was used to track evidence that linked Brown-Troop to the robbery; and (3) failing to effectively cross-examine the same officer concerning that evidence. Fourthly, Brown-Troop claims that the trial court abused its discretion in denying his request for a new attorney on the morning of trial.

         Federal courts are required to give the cases seeking relief under § 2254 prompt initial consideration pursuant to Rule 4 of the Rules Governing § 2254 Cases, which reads:

If it plainly appears from the face of 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 . . . .

         Rule 4, Rules Governing § 2254 Cases. This case was originally screened by Magistrate Judge Duffin, who summarily concluded that he was unable to say from his review of the petition that Brown-Troop was not entitled to federal relief and therefore directed the Respondent to answer the petition. On September 8, 2019, Brown-Troop filed a motion to stay further proceedings so that he could file another motion for postconviction relief in the trial court and exhaust his state court remedies as to additional claims. In his motion, Brown-Troop failed to say what those additional unexhausted claims might be. In response to Brown-Troop's motion to stay the proceeding, Magistrate Judge Duffin vacated his screening order directing the Respondent to file an answer.

         On September 12, 2019, the case was reassigned to me. Since then, the Respondent has filed an opposition to Brown-Troop's motion for a stay. Respondent points out that in Rhines v. Weber, the Supreme Court cautioned that because a stay of proceedings under § 2254 may undermine the twin goals of encouraging finality of state court convictions and streamlining federal habeas proceedings by decreasing the petitioner's incentive to exhaust all of his state court remedies before filing his federal petition, stays should be granted in only limited situations. Dkt. No. 12 at 2 (citing Rhines, 544 U.S. 269, 276-77 (2005)). Thus, in order to obtain a stay and abeyance of a previously filed petition for relief under § 2254, the petitioner must show “good cause for his failure to exhaust, [that] his unexhausted claims are potentially meritorious, and [that] there is no indication that the petitioner engaged in intentionally dilatory tactics.” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005)). Because Brown-Troop failed to make such a showing, Respondent argued his motion for a stay should be denied.

         On October 9, 2019, Brown-Troop filed a reply in which he identified the potential claims on which he wanted to exhaust his state court remedies. They include: ineffective assistance of counsel, prosecutorial misconduct, improper jury instruction, jury selection, and sentencing. Other than naming his potential claims, however, Brown-Troop offered no factual allegations suggesting they may have merit or any explanation as to why they were not raised earlier. He has thus failed to make the kind of showing Rhines requires in order to merit an indefinite stay of his federal proceedings so he can return to state court. The motion for a stay will therefore be denied.

         Having concluded that Brown-Troop's motion to stay proceedings should be denied, I now turn to his original petition. Although Magistrate Judge Duffin entered a screening order and directed the Respondent to file an answer, he vacated that order when Brown-Troop filed his motion for a stay. I will therefore proceed to screen the petition to determine whether it merits a response. In doing so, I note at the outset that Brown-Troop has failed to comply with the instructions on the form the district provides for § 2254 petitions. Part II of the form asks the petitioner whether he appealed from the judgment of conviction. Dkt. No. 1 at 3. If the answer is “yes, ” the petitioner is instructed to “attach the decision(s) that resolved your appeal and answer the following questions.” Brown-Troop failed to attach a copy of the decision by the Wisconsin Court of Appeals denying his motion for postconviction relief and affirming his conviction. Because Rule 4 requires the court to dismiss the petition “[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, ” his failure to provide a copy of the state court decision renders it defective. This defect can be cured, however, since the state court decision, as noted above, can be found at the public domain cite and I am able to consider it in making the determination required by Rule 4.

         It should also be noted that federal relief under § 2254 is not simply another appeal as of right. The authority of federal courts to review state court convictions is limited to persons who are “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Moreover, federal review under § 2254 is available only on claims for which the petitioner has already exhausted his state court remedies and, as to such claims, is extremely narrow. A federal court may not grant relief to a state prisoner under § 2254 on any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Thus, in order to state a claim for relief under § 2254, a petitioner must allege facts that would support a finding that the state court decision adjudicating his claims meets one of these two requirements.

         Finally, I note that federal “[h]abeas corpus petitions must meet heightened pleading requirements . . . .” McFarland v. Scott, 512 U.S. 849, 856 (1994) (citing 28 U.S.C. § 2254 Rule 2(c)). The petition must “specify all the grounds for relief available to the petitioner, ” and “state the facts supporting each ground.” 28 U.S.C. § 2254, Rule 2(c); see also Borden v. Allen, 646 F.3d 785, 810 (11th Cir. 2011) (“The § 2254 Rules and the § 2255 Rules mandate “fact pleading” as opposed to “notice pleading, ” as authorized under Federal Rule of Civil Procedure 8(a).”). The reason for the heightened pleading requirement in habeas cases, as the Eleventh Circuit noted in Borden, is obvious:

Unlike a plaintiff pleading a case under Rule 8(a), the habeas petitioner ordinarily possesses, or has access to, the evidence necessary to establish the facts supporting his collateral claim; he necessarily became aware of them during the course of the criminal prosecution or sometime afterwards. The evidence supporting a claim brought under the doctrine set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for example, may not be available until the prosecution has run its course. The evidence supporting an ineffective assistance of counsel claim is available following the conviction, if not before. Whatever the claim, though, the petitioner is, or should be, aware of the evidence to support the claim before bringing his petition.

Id. at 810. Were the rule otherwise, federal habeas would be transformed into an appeal as of right and “a vehicle for a so-called fishing expedition via discovery, an effort to find evidence to support a claim.” Id. at 810 n.31.

         Given the fact that a person seeking relief under § 2254 has already raised in state court the same claim or claims for which he now seeks federal review and exhausted each level of review available in the state system, it should not be overly burdensome for the petitioner to describe those same claims with sufficient specificity to allow the federal court tasked with the job of screening his petition to determine whether a claim cognizable under § 2254 has been stated. This is not too much to expect of a petitioner before the State is ordered to undertake the task of filing an answer to the petition, including copies of all or almost all of the pleadings, hearing transcripts, and briefs filed in what is often a lengthy state court proceeding. Generally, the petitioner's task is made significantly less ...


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