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Jackson v. Foster

United States District Court, E.D. Wisconsin

November 15, 2019

JAMEY JACKSON, Petitioner,
v.
BRIAN FOSTER, Respondent.

          ORDER

          J.P. Stadtmueller, U.S. District Judge.

         Petitioner 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.

         Rule 4 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 cognizable claims.

         According 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 11, 2018.

         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).

         The 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.

         Next, 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).

         Here, 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.

         Jackson 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.

         The 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.

         The 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.

         Having 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.

         Here, 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 evidence. Id.

         Jackson's 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 ...


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