Austin v. Deppisch

Filing 4

ORDER signed by Judge J P Stadtmueller on 12/3/09 dismissing without prejudice 1 Thomas R. Austin's Petition for Writ of Habeas Corpus. (cc: petitioner, all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
__________________________________________________ T H O M A S R. AUSTIN, P e t it io n e r , v. J O D IN E DEPPISCH, Respondent. __________________________________________________ C a s e No. 09-CV-929

ORDER
O n September 25, 2009, petitioner Thomas R. Austin filed a petition for a writ o f habeas corpus pursuant to 28 U.S.C. § 2254. After a pleading guilty in Fond du L a c County Circuit Court, Austin was convicted of Injury by Use of a Vehicle with a P ro h ib ited Alcohol Concentration ("PAC"), a violation of W is . Stat. § 940.25(1)(b), a n d Operating a Vehicle with PAC, fifth and subsequent offense, a violation of W is . S ta t. 346.63(1)(b). Austin was sentenced to ten and a half years' imprisonment, and e ig h t years' extended supervision. Austin is currently confined to the Fox Lake C o rre c tio n a l Institution in Fox Lake, Wisconsin. Rule 4 of the Rules Governing Section 2254 Cases in the United States D is tric t Courts authorizes a district court to conduct an initial screening of habeas c o rp u s petitions and to dismiss a petition summarily where "it plainly appears from th e face of the petition . . . that the petitioner is not entitled to relief." This rule p ro vid e s 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

frivo lo u s . See Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993). Upon an initial R u le 4 review of habeas petitions, the court will analyze whether the petitioner has a vo id e d statute of limitations bars, exhausted available state remedies, avoided p r o c e d u r a l default, and set forth cognizable constitutional or federal law claims. T h e court begins its Rule 4 review by examining the timeliness of Austin's p e titio n . A state prisoner in custody pursuant to a state court judgment has one year fro m 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 § 2244(d)(1)(A) w h e n all direct appeals in the state courts are concluded followed by either the c o m p le tio n or denial of certiorari proceedings in the U.S. Supreme Court, or, if c e rtio ra ri is not sought, at the expiration of the 90 days allowed for filing for certiorari. S e e Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002). Here, it appears Austin's petition is timely. According to the information p r o v id e d in his federal habeas petition, Austin's conviction became final on O c to b e r 13, 2009, which was 90 days after the W is c o n s in Supreme Court denied A u s tin 's petition for review. T h e court continues its Rule 4 review by examining Austin's petition to d e te rm in e whether he has exhausted his state 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

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to exhaust the remedies available in state court before a district court will consider th e merits of a 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 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 or resubmitting the petition to present only e xh a u s te d claims. See Rose v. Lundy, 455 U.S. 509, 510 (1982); Rhines v. Weber, 5 4 4 U.S. 269, 278 (2005). A prisoner exhausts his constitutional claim when he p re s e n ts it to the highest state court for a ruling on the merits. Simmons v. Gramley, 9 1 5 F.2d 1128, 1132 (7th Cir. 1990). Once the state's highest court has had a full a n d 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, 405 U.S. 504, 516 n.18 (1 9 7 2 ). H e re , it appears that at least some of the claims in Austin's petition have not b e e n exhausted. Austin's petition lists four grounds for relief, yet each ground c o n ta in s several claims. The claims that were exhausted are those that were raised b e fo re the W is c o n s in Court of Appeals in Austin's direct appeal from his conviction. T h o s e issues were: 1) did the circuit court erroneously exercise its discretion when it accepted Austin's waiver to the conflict-of-interest issue defense counsel raised; 2 ) were Austin's Alford 1 pleas entered knowingly and voluntarily; 3) did the circuit

See North Carolina v. Alford, 400 U.S. 25 (1970); see also State v. Garcia, 532 N.W .2 d 111, 115 ( W is . 1995) ("An Alford plea is a guilty plea in which the defendant pleads guilty while either m a in ta in in g his in n o c e n c e or not adm ittin g having com m itte d the crim e . " ) .

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c o u rt properly permit the state to amend the Information at the plea hearing; 4) did the circuit court err in denying Austin's presentence motion to withdraw his Alford p le a s ; 5) did the circuit court abuse its discretion in sentencing Austin; 6) did the c irc u it court properly deny Austin's post-sentence motion to withdraw his pleas on th e ground that his counsel was ineffective; 7) were Austin's prior W a lw o rth county d r u n k driving convictions illegally obtained; and 8) did Austin suffer unfair bias as a re s u lt of a newspaper misquoting him as saying he intended to run the stop sign w h e re the accident occurred. W h ile some of these claims are present in Austin's fe d e ra l habeas petition, there are many additional claims also present in his federal h a b e a s petition. The issue of exhaustion in this case is vexing for two reasons. First, the re c o r d does not contain any of the briefs Austin filed with the state courts in his direct a p p e a l proceedings, thus, this court has no way of knowing precisely what issues A u s tin did in fact raise. The second reason exhaustion is problematic in this case is because Austin's federal habeas petition is rambling, borderline incoherent, and s u b s ta n tia lly exceeds the habeas worksheet's spatial limitations. To order the state to respond to Austin's present petition would impose an undue burden on the state, g ive n the general unintelligibleness of the petition. Austin's petition seems to focus on three major issues. First is the fact that his c a r was never subjected to an intense diagnostic test, specifically focusing on the b ra k e s . Second is the fact that a newspaper ran a story in which it credited Austin

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w ith having said, according to an investigating officer, that he intended to run the s to p sign at which the accident occurred. Third is the fact that Austin believes two o f his previous drunk driving convictions are not valid. These three issues underlie c l a i m s of ineffective assistance of trial counsel, ineffective assistance of postc o n vic tio n counsel, prosecutorial misconduct, and error on the part of the trial court f o r not allowing Austin to withdraw his Alford pleas. All of those issues appear to b e exhausted and thus permissible in this federal habeas petition. If those are the o n ly issues Austin wishes to raise, then he can simply re-file and state as much in a clear, understandable manner. If there are other issues that Austin wishes to raise ­ as his present petition appears to indicate ­ then he needs to clearly delineate th o s e issues in order that this court can determine if they are exhausted, and so that th e state can have a petition to which it can actually respond. T h e court next reviews Austin's petition under Rule 4 to determine whether he h a s procedurally defaulted on any of his claims. Even though a constitutional claim in a federal habeas petition has been exhausted, the court is still barred from c o n s id e rin g the claim if it has been procedurally defaulted by the petitioner. See M a h a ffe y v. Schomig, 294 F.3d 907, 915 (7th Cir. 2002). A state prisoner

p ro c e d u ra lly defaults on a constitutional claim in a habeas petition when he fails to ra ise the claim in the state's highest court in a timely fashion. See O'Sullivan v. B o e r c k e l, 526 U.S. 838, 848 (1999). A state prisoner may also procedurally default o n a constitutional claim in a habeas petition by failing to raise the claim in a manner

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p re s c rib e d by state procedural laws. See Thomas v. McCaughtry, 201 F.3d 995, 1 0 0 0 (7th Cir. 2000). Here, the court notes that it does not appear Austin's claims are procedurally d e fa u lte d . However, the court is unable to reach the merits of the issue given the c o u rt's holding on the issue of exhaustion. T h e court concludes its Rule 4 review by screening for patently frivolous and s p e c u la tive claims in Austin's federal habeas petition. Small v. Endicott, 998 F.2d 4 1 1 , 414 (7th Cir. 1993). The majority of Austin's claims do not appear patently frivo lo u s , though one of the claims does. The fact that he was misquoted as saying th a t he intended to run the stop sign seems irrelevant to any of the claims he p re s e n ts . Undoubtedly, such a statement could engender bias against a defendant c h a rg e d with intentionally running a stop sign and causing injury. However, Austin w a s charged with causing injury as a result of driving while intoxicated, not of in te n tio n a lly running a stop sign. The salient question was his blood alcohol content, w h ich was undisputedly far in excess of the legal limit. The court is not prepared to fo re c lo s e Austin from raising this issue, but he will have to explain how it is relevant. B e c a u s e , as best the court can determine, Austin has not exhausted all of his c la im s , his petition must be dismissed. He may either exhaust whatever claims he w is h e s to raise other than those that the court herein identified as exhausted, or he c a n re-file his petition clearly raising and articulating only exhausted claims, or he is fre e to do neither if he chooses.

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A c c o r d in g ly , IT IS ORDERED that Austin's Petition for W rit of Habeas Corpus (Docket #1) b e and the same is hereby DISMISSED without prejudice. T h e clerk is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 3rd day of December, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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