United States District Court, E.D. Wisconsin
STADTMUELLER U.S. District Judge.
Henry Weston has 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 has also provided a
motion for leave to proceed without prepayment of the $5.00
filing fee, which the Court will grant in light of
Petitioner's averments that he is indigent and has no
financial resources. (Docket #2). The Court will now turn to
screening the petition under Rule 4 of the Rules Governing
Section 2254 Proceedings. That Rule 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
March 2010, Weston was charged with first degree intentional
homicide, attempted first degree intentional homicide, and
aggravated battery with intent to cause great bodily harm, in
violation of Wis.Stat. §§ 940.01, 940.19(5) in Rock
County Circuit Court No. 2010CF554. On January 13, 2012, the
jury found Weston guilty of the charges and on April 30, 2012
he was sentenced to one life term of imprisonment, one
forty-year term, and one ten-year term, to run concurrently.
judgment of conviction was issued on April 30, 2012. Weston
filed a notice of intent to pursue post-conviction relief on
May 17, 2012. The motion for post-conviction relief was not
actually filed until December 20, 2013. On October 13, 2016,
the trial court denied the Petitioner's motion for a new
trial. Petitioner appealed, and the Wisconsin Court of
Appeals considered the four following grounds for appeal: (1)
a witness's recanted testimony constituted newly
discovered evidence; (2) Petitioner's Sixth Amendment
right to confront witnesses was violated when he was not
afforded the opportunity to impeach the witness; (3) trial
counsel was ineffective for failing to investigate evidence
and impeach the witness at trial; and (4) the circuit court
improperly admitted evidence of Petitioner's statements
to the police, which were allegedly involuntary. State v.
Weston, 2018 WL 1586640, at *1 (Wis. Ct. App. Mar. 29,
2018). The Wisconsin Court of Appeals affirmed the trial
court's judgment and the order denying post-conviction
relief. Id. The Wisconsin Supreme Court denied
Weston's petition for review on September 6, 2018.
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).
it appears the petition is timely. Weston initiated his
appeal and post-conviction proceedings soon after entry of
the judgment of conviction. Those proceedings concluded on
September 6, 2018. Weston's judgment became final on
December 5, 2018, which was the deadline to file a writ of
certiorari from the Supreme Court. Weston filed the instant
petition on July 30, 2019, which is within one year of the
date that judgment became final. Thus, the Court cannot say
that the petition is plainly barred by the statute of
the Court analyzes whether Weston 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).
Weston appears to have exhausted his remedies as to three of
the claims he raises in his petition. First, Weston alleges
that his Sixth Amendment right to confront his witnesses was
violated when the trial court refused to admit evidence
impeaching one of the key witnesses. (Docket #1 at 6).
Second, Weston alleges that he received ineffective
assistance of counsel when his trial counsel failed to
investigate evidence and impeach the key witness at trial.
Id. 7-8. Third, the State's failure to disclose
a potentially exculpatory statement that the key witness made
to the Department of Corrections constitutes a Brady
violation. Id. at 8. Finally, Weston argues that he
is entitled to a new trial due to newly discovered evidence
in the form of the key witness's recantation and other
corroborating evidence. The Wisconsin Court of Appeals had
occasion to consider all of these grounds except for the
alleged Brady violation. See Weston, 2018 WL
1586640, at *2-6. It does not appear that Weston has
exhausted this claim in the state courts.
federal habeas petition has even a single unexhausted claim,
the district court may be required to dismiss the entire
petition and leave the petitioner with the choice of either
returning to state court to exhaust the claim or amending or
resubmitting the petition to present only exhausted claims.
See Rose v. Lundy, 455 U.S. 509, 510 (1982). Under
Rhines v. Weber, 544 U.S. 269, 278 (2005), the Court
should grant a stay to allow the petitioner to return to
state court to exhaust his claims when “the petitioner
had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally
dilatory litigation tactics.” See also Purvis v.
United States, 662 F.3d 939, 944 (7th Cir. 2011)
(applying Rhines to a mixed petition brought under
28 U.S.C. § 2255). The Court should also allow the
petitioner to amend his petition to remove any unexhausted
claims before dismissing the petition. Rhines, 544
U.S. at 278.
the Court must give Weston a choice. This choice, however,
will depend on the grounds upon which Weston seeks relief.
Either Weston can: (1) dismiss this petition in its entirety
in order to exhaust his remaining claim in state court; (2)
move for a stay and abeyance while he returns to state court
to exhaust his unexhausted claim; or (3) elect to proceed on
only the exhausted claims described above. If he dismisses
the unexhausted claim, then the Court will be able to
consider only his exhausted claims.
Weston elects option (2) and wishes to maintain his
unexhausted claim and seek a stay and abeyance, he should
file a separate motion for a stay and abeyance. In that
motion, Weston will need to show that he “had good
cause for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation
tactics.” Rhines, 544 U.S. at 278. If Weston
elects option (3) and wishes to dismiss his unexhausted claim
and proceed only on his exhausted claims, then he should: (a)
file an amended petition which does not include the
unexhausted claim; and (b) file a separate letter telling the
Court that he wishes to proceed only on his exhausted claims.
Finally, if Weston elects option (1) and seeks to dismiss
this action in its entirety so that he may exhaust his claim
in the state court, he may notify the Court of that decision
by letter. The Court hereby warns Weston that, if he proceeds
only on the exhausted claims, he may not be able to proceed
on his other claim(s) in a second or successive petition.
See 28 U.S.C. § 2244(b)(2).
course of action Weston elects to take, the Court will
require him to file his amended petition, motion, or letter
as described herein within thirty (30) days
of the entry of this Order.
IT IS ORDERED that, within thirty
(30) days of the entry of this Order, Petitioner
shall: (1) file a letter seeking dismissal of this action in
its entirety while he exhausts his claim in state court; (2)
move for a stay and abeyance of this action while he exhausts
his unexhausted claim in state court; or (3) file a letter
indicating that he wishes to proceed only on his exhausted
claims and file an amended petition that does not include the
unexhausted claim; and
IS FURTHER ORDERED that Petitioner's motion to
proceed without prepayment of the filing fee (Docket #2) ...