United States District Court, E.D. Wisconsin
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.
Pamela Pepper Chief United States District Judge.
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.
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.
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.
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.
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)).
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.
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
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 ...