Laster v. Pollard

Filing 4

ORDER granting 2 Motion to Stay. (cc: all counsel and via US Mail to Desmond Laster) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DESMOND LASTER,
Petitioner,
v.

Case No. 14-C-365

WILLIAM POLLARD,
Respondent.

ORDER GRANTING MOTION FOR STAY

On March 31, 2014, Desmond Laster filed this petition for federal habeas corpus pursuant
to 28 U.S.C. § 2254, asserting that his state court conviction and sentence were imposed in violation
of the Constitution. On March 24, 2011, Laster was convicted in Milwaukee County Circuit Court
on four counts of first-degree intentional homicide while armed, arson, and felon in possession of
a firearm, and he was sentenced to four consecutive life sentences. His conviction was affirmed by
the Wisconsin Court of Appeals on April 2, 2013, and the Wisconsin Supreme Court denied his
petition for review on August 1, 2013. Laster is currently incarcerated at Waupun Correctional
Institution.
I must 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 remedies.
Laster’s petition asserts three grounds for relief. He claims that his due process rights were
violated when: (1) evidence that his alibi witness hit a child and instructed Laster’s child to hit other
children (thereby diminishing her credibility) was allowed, (2) the court denied his motion for
mistrial following the admission of evidence suggesting that defense counsel coached an alibi
witness to lie, and (3) evidence was presented that he called his mother certain derogatory names.
Laster has also filed a motion to stay his petition, however, because he wishes to add a claim as to
which he has not yet exhausted his state court remedies. In particular, he claims that the state
interfered with his effort to present testimony by two alibi witnesses by threatening them with
prosecution for perjury if they testified on his behalf. Laster contends that the actions of the district
attorney violated his right to due process and his attorneys’ provided ineffective assistance of
counsel in violation of his Sixth Amendment right to counsel by failing to object and raise the issue
on appeal.
A district court may not adjudicate a habeas petition that contains both claims that have been
exhausted and claims that have not been exhausted. Rose v. Lundy, 455 U.S. 509, 510 (1982).
Rather than dismiss a petition containing both exhausted and unexhausted claims, “a district court
might stay the petition and hold it in abeyance while the petitioner returns to state court to exhaust
his previously unexhausted claims. Once the petitioner exhausts his state court remedies, the
district court will lift the stay and allow the petitioner to proceed in federal court.” Rhines v. Weber,
544 U.S. 269, 275–276 (2005). A stay should not be granted automatically, however:

-2-

Staying 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. at 277. A stay should not be granted when there is not good cause for the petitioner's failure to
exhaust his claims first in state court or when the unexhausted claims are plainly meritless.
Here, Laster contends that ineffective assistance of counsel constitutes good cause for his
failure to exhaust earlier and that his claim that the prosecutor violated his due process rights is not
plainly without merit. On the record before me, I cannot say that either exception to the rule in
favor of granting a stay applies. Accordingly, the motion to stay will be granted. But to avoid
unreasonable delay, the court will impose strict time limits to insure Laster immediately pursues his
state court remedies and promptly returns to this court as soon as they are exhausted, as Rhines
suggests. Id. at 278.
Accordingly, Laster is granted a stay of his petition conditioned upon his filing his motion
for post-conviction relief on his unexhausted claim within 30 days of this order. Notice of his filing
his motion in state court must be filed with this court. Laster is also ordered to advise the court of
the status of his state court proceeding n writing within 180 days of this order, or thirty 30 days of
when it is finally decided, whichever is earlier. Failure to comply will result in dismissal of the
petition for failure to prosecute.
SO ORDERED at Green Bay, Wisconsin, this

7th

day of April, 2014.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

-3-