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Brown v. Foster

United States District Court, E.D. Wisconsin

November 1, 2019

ENNIS LEE BROWN Petitioner,
v.
BRIAN FOSTER, Respondent.

         ORDER DENYING MOTION FOR EVIDENTIARY HEARING (DKT. NO. 84); DENYING MOTION FOR RECONSIDERATION (DKT. NO. 85); DENYING MOTION FOR EMERGENCY RELEASE (DKT. NO. 86); GRANTING MOTION FOR LEAVE TO APPEAL WITHOUT PREPAYMENT OF FILING FEE (DKT. NO. 87) AND DENYING MOTION FOR REVIEW AND EVIDENTIARY HEARING (DKT. NO. 89)

          Hon. Pamela Pepper Chief United States District Judge.

         On May 28, 2019, the court issued an order dismissing the petitioner's petition for writ of habeas corpus without prejudice because it contained both exhausted and unexhausted claims. Dkt. No. 82. Two weeks later-on June 14, 2019-the petitioner filed a motion for an evidentiary hearing. Dkt. No. 84. Three days later, the court received from the petitioner a motion for reconsideration. Dkt. No. 85. On August 9, 2019, the court received a motion from the petitioner, asking for emergency release. Dkt. No. 86. On October 8, 2019, the court received the petitioner's motion for permission to appeal in forma pauperis (that is, without prepaying the filing fee). Dkt. No. 97. Finally, on October 15, 2019, the court received another motion from the petitioner, asking the court to review and grant him an evidentiary hearing on an issue he indicated the court hadn't addressed in its habeas ruling. Dkt. No. 89. This order resolves these motions.

         I. Background

         In November of 2016, the petitioner filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his 2013 conviction on multiple counts charging him with offenses related to the sexual and physical abuse of five of his daughters. Dkt. No. 1. In January 2017 the court screened the petition, and issued an order allowing the petitioner to proceed on three claims. Dkt. No. 9. The petitioner later asked to amend his petition, dkt. no. 15, and the court allowed him to do so, dkt. no. 25. In its order allowing the amended petition, the court identified five claims on which the petitioner could proceed: (1) a Fourth Amendment claim that Milwaukee Police arrested the petitioner without a warrant; (2) a Sixth Amendment claim that the petitioner was denied his right to a speedy trial; (3) a Sixth Amendment claim that the petitioner was denied counsel; (4) an Eighth Amendment double jeopardy/multiplicity/duplicity claim; and (5) a sufficiency of the evidence claim. See Dkt. Nos. 25, 77.

         Over the next eight months, the petitioner filed over twenty-five documents, including motions for emergency release (dkt. nos. 40, 43, 45, 57), a motion for evidentiary hearing (dkt. no. 31), and various letters, other motions and responsive briefs. See generally Dkt. Nos. 27-58. The court issued a February 27, 2018 order addressing the petitioner's filings; it denied his motion for an evidentiary hearing as premature and denied his motions for emergency release as unwarranted. Dkt. No. 59.

         About a year later, the court issued a twenty-two-page order recounting the posture of the case and considering the petitioner's bases for habeas relief. Dkt. No. 77. The court concluded that the petition constituted a “mixed” petition; the petitioner had raised only two of his claims-the denial of his right to speedy trial and denial of right to counsel-in his appeal to the Wisconsin Court of Appeals and had presented only his denial of right to counsel claim to the Wisconsin Supreme Court. Dkt. No. 77 at 15. The court found that the petitioner hadn't given the Wisconsin Court of Appeals a chance to consider the other three claims and had not given the Wisconsin Supreme Court the opportunity to consider those three claims or the speedy trial claim. Id.

         The February 19, 2019 order explained that in a case involving a “mixed” petition-a petition that raised exhausted and unexhausted claims-the court had three options under the law: (1) it could dismiss the entire petition without prejudice under Rose v. Lundy, 455 U.S. 509, 510 (1982); (2) it could dismiss the unexhausted claims and allow the petitioner to proceed on only the exhausted claims; or (3) it could hold the petitioner's petition in abeyance (“stay” the proceedings) until he returned to the state court and exhausted his state court remedies under Rhines v. Weber, 544 U.S. 269, 273 (2005). Id. at 15-17. The court explained that if the petitioner wanted to go with the third option-asking the court to stay the case while he returned to state court to exhaust the unexhausted claims-he would need to show good cause for failing to raise the four unexhausted claims in state court before filing his federal habeas petition. Id. at 17-18. The court perceived that the plaintiff had appeared to assert that his appellate counsel's ineffective performance constituted his good cause. Id. at 18. It noted, however, that “‘[a] claim of ineffectiveness must itself have been fairly presented to the state courts before it can establish cause for a procedural default of another claim.'” Id. (quoting Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004)).

         The court explained that the way the petitioner could challenge the effectiveness of his appellate counsel was through a [State v.] Knight, [168 Wis.2d 509 (Wis. 1992)] petition. Id. The court observed that it had not found a Knight petition attached to any of the petitioner's filings with this court and or in the public record. Id. The court remarked:

Perhaps the petitioner has filed a Knight petition in state court, and this court somehow missed it. Perhaps he has chosen not to file a Knight petition for some reason; that would be his right. Perhaps he would like the opportunity to file a Knight petition, and wants this court to delay its ruling until he can do that. Before the court dismisses the petition for procedural default, as the respondent has asked it to do, the court will give the petitioner the opportunity to provide the court with proof that he has filed a Knight petition or tell the court that he has chosen not to do so. If the petitioner has filed a Knight petition and the state courts have ruled on it, he should provide this court with copies of the state court's decision. If he has not filed a Knight petition but wants to do so, he should file that petition by the deadline the court sets below. If the petitioner notifies the court that he has chosen not to file a Knight petition, the court will issue its ruling dismissing the petition on the ground of procedural default.

Dkt. No. 77 at 20. The court gave the petitioner until March 29, 2019 to file his response to the court's February 19, 2019 order. Id.

         On March 4, 2019, the court received the petitioner's response. Dkt. No. 80. He told the court that he had tried to file something with the Wisconsin Supreme Court in August of 2015, but that that court had dismissed his case because he did not show good cause for waiving the $195 filing fee. Id. His response further stated that “I would like to proceed and await your decision on my Writ of Habeas Corpus, 28 U.S.C. §2254” and “[the petitioner] will not [] have plans to return to the State of Wisconsin Court System, at this stage.” Id. at 2-3.

         Based on this response, the court dismissed the mixed petition on May 28, 2019. Dkt. No. 82. It wrote that

even though this court has given him a chance to do so, the petitioner has not explained to this court what issues he raised in the petition to the Wisconsin Supreme Court []. Nor has he explained why he did not send in the paperwork to prove that he was indigent, so that the Supreme Court could consider whether to waive the $195 filing fee. The petitioner has demonstrated only that he filed something titled “Petition for Writ of Habeas Corpus” in the Wisconsin Supreme ...

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