Holtz v. Kingston

Filing 3

ORDER DISMISSING petition for a writ of habeas corpus without prejudice signed by Judge J P Stadtmueller on 4/21/06. Petitioner's motion for leave to proceed in forma pauperis 2 is denied as moot. (cc: petitioner)

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Holtz v. Kingston Doc. 3 Case 2:06-cv-00485-JPS Filed 04/21/2006 Page 1 of 5 Document 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN R I C K A. HOLTZ, P e t it io n e r , v. PHIL KINGSTON, R e s p o n d e n t. C a s e No. 06-CV-485 ORDER O n April 12, 2006, Rick Holtz filed a petition for a writ of habeas corpus p u rs u a n t to 28 U.S.C. 2254 challenging his conviction of second-degree sexual a s s a u lt of a child under age sixteen, as a repeat offender. Holtz also filed a motion to proceed in forma pauperis, even though he already paid the $5 filing fee. The c o u rt will review Holtz's federal habeas petition pursuant to Rule 4 of the Federal R u le s Governing Section 2254 Cases. T h e court begins its review of Holtz's petition by noting that this is Holtz's s e c o n d federal habeas petition. On February 15, 2006, Holtz filed a petition for a w rit of habeas corpus which the court dismissed in an order dated March 21, 2006, b e c a u s e it contained an unexhausted claim. Holtz v. Kingston, Case No. 06-CV-186 (E .D . W is. March 21, 2006). Title 28 U.S.C. 2244(b)(3)(A) requires a petitioner to get permission from the c o u r t of appeals before filing a second or successive habeas petition in the district c o u rt. See Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). However, the Dockets.Justia.com Case 2:06-cv-00485-JPS Filed 04/21/2006 Page 2 of 5 Document 3 S u p r e m e Court held that, where a habeas petition is dismissed for purely procedural re a s o n s without substantive district court review, a subsequent petition is not a s e c o n d or successive one within the meaning of 2244(b). Slack v. McDaniel, 529 U .S . 473, 485-86 (2000) ("A habeas petition filed in the district court after an initial h a b e a s petition was unadjudicated on its merits and dismissed for failure to exhaust s ta te remedies is not a second or successive petition."); see also Stewart v. M a rtin e z -V illa re a l, 523 U.S. 637, 643-46 (1998) (Court permitted a claim previously ra is e d in a petition and dismissed as premature, but which was now ripe, to be ra ise d in a renewed petition). Given that Holtz's first petition was not adjudicated on its merits and was d is m is s e d for presenting an unexhausted claim, the court concludes that this petition d o e s not constitute a second or successive petition within the meaning of 2244(b). A s such, the court will proceed with its review of Holtz's federal habeas petition. T h e court continues its review by examining Holtz's petition to determine w h e th e r he has exhausted his state court remedies. The district court may not a d d re s s the merits of the constitutional claims raised in a federal habeas petition "u n le s s 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 th e merits of his federal habeas petition. 28 U.S.C. 2254(b)(1)(A). If a federal h a b e a s petition has even a single unexhausted claim, the district court must dismiss -2- Case 2:06-cv-00485-JPS Filed 04/21/2006 Page 3 of 5 Document 3 th e entire petition and leave the petitioner with the choice of either returning to state c o u rt to exhaust the claim ,or amending the petition to present only exhausted c la i m s . Rose v. Lundy, 455 U.S. 509, 510 (1982). A prisoner exhausts his c o n s titu tio n a l claim when he presents it to the highest state court for a ruling on the m e rits. Simmons v. Gramley, 915 F.2d 1128, 1132 (7th Cir. 1990). Once the state's h ig h e s t court has had a full and fair opportunity to pass upon the merits of the claim, a prisoner is not required to present it again to the state courts. Humphrey v. Cady, 4 0 5 U.S. 504, 516 n.18 (1972). Here, it appears from the face of Holtz's federal habeas petition that he has n o t exhausted his state court remedies. Holtz lists four grounds for relief in his p e titio n , however each ground is exactly the same: "Ineffective Appellant [sic] C o u n s e l." The court informed Holtz in dismissing his prior federal habeas petition th a t this was an unexhausted claim. Holtz's new federal habeas petition indicates th a t he still has not presented his claim of ineffective assistance of appellate counsel to the state courts. As such, the claim remains unexhausted and requires the d ism iss a l of his petition. See Rose, 455 U.S. at 510. It appears that Holtz may yet pursue a claim of ineffective assistance of a p p e lla te counsel through the W isc o n s in 's post-conviction relief statute. See W is . S ta t. 974.06(1); see also State ex rel. Rothering v. McCaughtry, 556 N.W .2 d 136, 1 3 9 (W is . Ct. App. 1996) (describing procedure for challenging the effectiveness of p o s t-c o n vic tio n counsel). -3- Case 2:06-cv-00485-JPS Filed 04/21/2006 Page 4 of 5 Document 3 A d d it io n a lly , the court notes that Holtz faces no immediate statute of lim ita tio n s deadlines. A state prisoner in custody pursuant to a state court judgment h a s one year from the date "the judgment became final" to seek federal habeas re lie f. 28 U.S.C. 2244(d)(1)(A). A judgment becomes final within the meaning of S e c tio n 2244(d)(1)(A) when all direct appeals in the state courts are concluded fo llo w e d by either the completion or denial of certiorari proceedings in the U.S. S u p r e m e Court, or if certiorari is not sought, at the expiration of the 90 days allowed fo r filing for certiorari. See Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002). T h e one-year limitation is tolled pursuant to the provisions in 28 U.S.C. 2244(d)(1)(B)-(D). See Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999). The o n e -y e a r limitation period may be equitably tolled if a state prisoner encounters s o m e impediment other than those covered in Sections 2244(d)(1)(B)-(D) and (2) w h ich prevents the filing of the federal habeas petition. Taliani, 189 F.3d at 598; see a ls o Johnson v. McCaughtry, 265 F.3d 559, 565 (7th Cir. 2001). Here, Holtz's judgment became final on October 26, 2005, 90 days after the W is c o n s in Supreme Court denied his petition for review. The one-year statute of lim ita tio n s began to run on October 27, 2005, and has continued to run while the h a b e a s petition has been pending in this court. See Duncan v. Walker, 533 U.S. 1 6 7 , 181 (2001) (holding that 2244(d)(2) does not toll the limitation period during th e pendency of a federal habeas petition). Holtz has enough time to exhaust his remedies in state court and re-file his h a b e a s petition in federal court before the one-year statute of limitations runs, -4- Case 2:06-cv-00485-JPS Filed 04/21/2006 Page 5 of 5 Document 3 e s p e c ia lly considering that the time that Holtz spends exhausting his claims in state c o u r t does not count toward the period of limitation. 28 U.S.C. 2244(d)(2). B e c a u s e Holtz has sufficient time to file a post-conviction motion in state court and file a new habeas petition in federal court after he exhausts his appeals in state c o u rt, the court will dismiss this petition rather than stay it. See Freeman v. Page, 2 0 8 F.3d 572, 577 (7th Cir. 2000) (noting that district courts have discretion to stay a habeas corpus action while the prisoner exhausts state court remedies if dismissal c o u ld jeopardize the timeliness of a collateral attack). Accordingly, IT IS ORDERED that Holtz's petition for a writ of habeas corpus be and the s a m e is hereby DISMISSED without prejudice so that Holtz may present his u n e xh a u s te d claim of ineffective assistance of appellate counsel to the state courts; IT IS FURTHER ORDERED that Holtz's motion for leave to proceed in forma p a u p e ris (Docket #2) be and the same is hereby DENIED as moot; Holtz has already p a id the $5 filing fee. T h e Clerk is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 21st day of April, 2006. B Y THE COURT: s /J .P . Stadtmueller J .P . STADTMUELLER U .S . District Judge -5-

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