United States District Court, E.D. Wisconsin
ROBERT S. SWANTON, Petitioner,
BRIAN FOSTER, Respondent.
ORDER ON MIXED PETITION FOR RELIEF UNDER §
WILLIAM C. GRIESBACH, DISTRICT JUDGE.
December 12, 2019, Petitioner Robert S. Swanton, who is
currently incarcerated at Waupun Correctional Institution,
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. Petitioner was convicted in Racine County
Circuit Court of first-degree intentional homicide with use
of a dangerous weapon and was sentenced to life in prison
with the possibility of parole after 40 years.
filed with his petition an application for leave to proceed
in forma pauperis. He also, however, has submitted the $5
filing fee. Because he paid the filing fee, his request to
proceed in forma pauperis will be denied as moot.
give the case prompt initial consideration pursuant to Rule 4
of the Rules Governing § 2254 Cases, which reads:
If it plainly appears from the face of the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner. If
the petition is not dismissed, the judge must order the
respondent to file an answer, motion, or other response
within a fixed time . . . .
Rule 4, Rules Governing § 2254 Cases. During my initial
review of habeas petitions, I look to see whether the
petitioner has set forth cognizable constitutional or federal
law claims and exhausted available state court remedies.
application for writ of habeas corpus from a person in state
custody shall not be granted unless it appears that the
applicant has exhausted state remedies or there is no
available state corrective process or circumstances exist
that render such process ineffective to protect the
applicant's rights. 28 U.S.C. § 2254(b)(1). To
exhaust a claim, the petitioner must provide the state courts
with a full and fair opportunity to review his claims.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). A specific claim is not considered exhausted if the
petitioner “has the right under the law of the State to
raise, by any available procedure, the question
presented.” 28 U.S.C. § 2254(c). This requires the
petitioner to appeal adverse state court decisions all the
way to the state supreme court when doing so is part of the
ordinary appellate review procedure in that state.
O'Sullivan, 526 U.S. at 847. The doctrine of
exhaustion allows state courts the initial opportunity to
pass on and correct alleged violations of its prisoners'
federal rights. See Duckworth v. Serrano, 454 U.S.
1, 3 (1981) (“The exhaustion requirement, now codified
in the federal habeas statute, 28 U.S.C. §§ 2254(b)
and (c), serves to minimize friction between our federal and
state systems of justice by allowing the State an initial
opportunity to pass upon and correct alleged violations of
prisoners' federal rights.”).
alleges four grounds for relief. First, he claims his Fifth
Amendment rights were violated when misleading and coercive
tactics were used during an interrogation where he confessed
to murder. Swanton says he was unable to understand his
rights and overly susceptible to suggestions because he was
overmedicated. Second, Swanton alleges that his right to
present a defense was infringed when, at a motion hearing to
suppress his statement, his attorney and expert witness did
not show up. Swanton says he was forced to proceed pro se and
claims the trial judge erred in ruling he was not insane,
intoxicated, or confused. Third, Swanton raises a claim of
ineffective assistance of counsel. He argues that his counsel
failed to present an adequate defense, to appear at the
motion to suppress hearing, and to properly advise him on a
plea deal. Lastly, Swanton claims that he was incompetent to
stand trial or aid in preparing his defense.
the face of the petition, it appears that Swanton only
exhausted his first claim. The other grounds appear to state
claims for relief, but Swanton says he did not exhaust his
state remedies on these claims because his appellate attorney
withheld access to transcripts and discovery.
has therefore filed a mixed petition, that is, one containing
both exhausted and unexhausted claims. Generally, a petition
for writ of habeas corpus should be dismissed if state
remedies have not been exhausted as to any one of the
petitioner's federal claims. Rose v. Lundy, 455
U.S. 509 (1982); Cruz v. Warden of Dwight Corr.
Ctr., 907 F.2d 665, 667 (7th Cir. 1990). But if
dismissal would essentially bar a future habeas case because
of the statute of limitations, the case may be stayed to
provide the petitioner the opportunity to exhaust the
remaining claim. Freeman v. Page, 208 F.3d 572, 577
(7th Cir. 2000), overruled on other grounds by Artuz v.
Bennett, 531 U.S. 4 (2000).
situation like this, Swanton has two options. He may either
(1) have this case stayed while he pursues his unexhausted
claims in state court or (2) abandon any claims he has not
exhausted and proceed in this case with his exhausted claim.
Swanton must advise the court as to which of the two options
he wishes to pursue within thirty (30) days of the date of
this order. If he fails to do so, the case will be dismissed
as a mixed petition under Rose v. Lundy.
Swanton moves for a stay and abeyance until he exhausts his
state court remedies, his request may not be granted. This is
because the Supreme Court has cautioned that “stay and
abeyance should be available only in limited
circumstances.” Rhines v. Weber, 544 U.S. 269,
277 (2005). The Court explained in Rhines that
“[s]taying a federal habeas petition frustrates
AEDPA's objective of encouraging finality by allowing a
petitioner to delay the resolution of the federal
proceedings. It also undermines AEDPA's goal of
streamlining federal habeas proceedings by decreasing a
petitioner's incentive to exhaust all his claims in state
court prior to filing his federal petition.”
Id. Thus, the Court held that stay and abeyance
should only be granted “when the district court
determines there was good cause for the petitioner's
failure to exhaust his claims first in state court, ”
and even then only if the unexhausted claims are not
“plainly meritless.” Id. If a stay is
granted, it will be structured so as to ensure that Swanton
promptly moves to exhaust his state court remedies. Assuming
he has not already done so, for example, he could be required
to file his motion for postconviction relief on his
unexhausted claims within forty-five (45) days of this
court's order granting such a stay. In the event Swanton
does move for a stay and Respondent wishes to oppose the
motion, he should notify the court of his opposition within
ten (10) days of Swanton's motion for a stay and file his
brief in opposition within thirty (30) days thereafter.
Otherwise the court will proceed to decide any motion for a
stay on the record as it stands.
IS THEREFORE ORDERED that Swanton shall have thirty
(30) days following the filing of this order to advise the
court whether he wishes to either (1) have this case stayed
while he pursues his unexhausted claims in state court or (2)
abandon any claims he has not exhausted and proceed in this
case with his exhausted claim.
IS FURTHER ORDERED that Swanton's motion to
proceed in forma pauperis ...