United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge.
Jamey Jackson (“Jackson”) filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254,
alleging that his conviction and sentence were imposed in
violation of his constitutional rights. (Docket #1). He filed
a motion for leave to proceed without prepayment of the
filing fee, (Docket #2), and submitted a trust account
statement, (Docket #5), which reflects an average monthly
balance of $0.85 and an average monthly deposit of $7.86. The
Court will grant Jackson's motion, `waive the $5.00
filing fee associated with habeas petitions, and proceed with
screening the complaint.
of the Rules Governing Section 2254 Proceedings 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
to the petition and the state court docket, on February 3,
2015, Jackson was adjudged guilty by a jury of his peers of
one count of unlawful possession of a firearm in Milwaukee
County Court No. 14CF2307. He was sentenced to five years
confinement and five years of extended supervision. On March
6, 2017, Jackson filed a motion for postconviction relief,
arguing that his counsel was ineffective for failing to move
to suppress a lineup identification that violated his right
to counsel and was impermissibly suggestive. (Docket #1-1 at
1). The trial court denied the motion on May 5, 2017.
Id. at 12. On May 22, 2017, Jackson filed a notice
of appeal. In his appeal, he renewed his ineffective
assistance of counsel claim that his attorney should have
moved to suppress the lineup as impermissibly suggestive
because two of the three witnesses heard the third witness
ask to see him again. Id. at 17. He also argued that
there was insufficient evidence to support the guilty
verdict. Id. at 21. The Wisconsin Court of Appeals
affirmed the trial court's judgment on March 6, 2018.
Id. at 22. The Supreme Court denied review on June
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).
Wisconsin Supreme Court denied Jackson's petition for
review on June 11, 2018. Jackson then had ninety days to seek
certiorari from the Supreme Court. The habeas clock began to
run the day after this period expired, on September 9, 2018.
Jackson filed his petition in this Court on January 7, 2019,
within the one-year deadline prescribed by 28 U.S.C. §
2244(d)(1)(A). Accordingly, the petition is timely.
the Court analyzes whether Jackson 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).
Jackson appears to have exhausted his remedies as to his
ineffective assistance of counsel claim. Jackson claims the
following grounds for relief in his habeas petition: First,
“as a result of trial counsel's failure to object
to the impermissibly suggestive lineup, tainted
identification evidence was introduced at trial.”
(Docket #1 at 6). Second, he claims that there was
“constitutionally insufficient evidence to sustain the
guilty verdict adjudication.” Id. at 7.
has alleged grounds for relief that were considered by the
state court. Specifically, the Court will allow Jackson to
proceed on the following claims: (1) an ineffective
assistance of counsel claim against his trial counsel for
failing to object to or attempt to suppress the impermissibly
suggestive lineup; and (2) a challenge to the constitutional
sufficiency of the evidence used to sustain the conviction.
These were the issues addressed by the Wisconsin Court of
Appeals, State v. Jackson, 2017AP968, 2018 WL
1175136 (Wis. Ct. App. Mar. 6, 2018), and these were the
issues that the Wisconsin Supreme Court declined to review.
Court will now analyze whether Jackson 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 Jackson's claims at this
time on the basis of procedural default.
Court concludes its Rule 4 review by screening for patently
frivolous claims in Jackson'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.
screened the original petition, the Court now turns to
Jackson's motion to amend and stay his petition. (Docket
#7). Habeas petitions are governed by Federal Rule of Civil
Procedure (“FCRP”) 15, which addresses motions to
amend. 28 U.S.C. § 2242; Fed.R.Civ.P. 81(a)(4). FRCP 15
provides that “[a] party may amend its pleading once as
a matter of course within: (A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading. .
.” Fed.R.Civ.P. 15(a)(1). In a federal habeas case, the
period in which a petitioner can amend without leave of the
court “can be rather long” because “[u]nder
Habeas Corpus Rule 4, a petition is not immediately served on
the respondent.” Mayle v. Felix, 545 U.S. 644,
663 (2005). This is due to the fact that district court
judges will first screen the petition to determine whether it
plainly appears that the petitioner is not entitled for
relief. Id.; Rules Governing Section 2242 Cases in
the United States District Courts, Rule 4. Before the judge
conducts this screening, “the petitioner may amend his
pleading as a ‘matter of course, '” so long
as the statute of limitations has not expired.
Mayle, 545 U.S. at 663 (quoting Fed.R.Civ.P. 15(a)).
Once the statute of limitations expires, however, amendments
must relate back to the original petition. Id. at
656-57; Fed.R.Civ.P. 15(c)(1). The amendments must
“‘ar[i]se out of the conduct, transaction, or
occurrence'” as the claims alleged in the original
habeas petition. Mayle, 545 U.S. at 655 (quoting
Fed.R.Civ.P. 15(c)(2)). In other words, the “original
and amended petitions [must] state claims that are tied to a
common core of operative facts.” Id. at 664.
the habeas petition deadline expired on September 9, 2019 and
Jackson submitted his motion to amend the petition on October
7, 2019, approximately one month after the statute of
limitations expired. Therefore, his amended claim must be
tied to the same “common core of operative facts”
as the claims in his original petition; i.e., ineffective
assistance of counsel for failure to challenge the
inappropriately suggestive lineup and sufficiency of the
motion to amend seeks to bring another Sixth Amendment claim
on the grounds that his right to counsel was violated when
the police conducted a lineup without counsel present. The
basis of Jackson's amendment is founded in an unrelated
Section 1983 suit that was also filed in this branch of the
court, case number 18-CV-446, in which the government did not
dispute that Jackson's right to counsel was violated when
he was denied counsel during the lineup. (Docket #7 at 2). In
the Section 1983 suit, the government was shielded from
liability by the doctrine of qualified immunity, because the
law was unclear as to when the right to counsel attached.
See (No. 18-CV-446, Docket #51). Now, Jackson
contends that the ...