Payano v. Grams

Filing 6

ORDER that on or before 8/23/2010, Grams MUST file a statement, together with any supporting materials, that addresses whether Payano presented his Fourth Amendment claim for one complete round of review by the Wisconsin state courts. Payano may file a response to that submission on or before 9/23/2010. Signed by Judge Rudolph T Randa on 07/22/2010. (cc: all counsel; via US Mail to Tony Payano)(Koll, J)

P a y a n o v. Grams

Doc. 6

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

T O N Y PAYANO, P e titio n e r , v. C a s e No. 10-C-475 G R E G O R Y GRAMS, W a r d e n of Columbia Correctional Institution, Respondent.

DECISION AND ORDER

P ro se Petitioner Tony Payano ("Payano"), an inmate at the Columbia C o rre c tio n a l Institution ("CCI"), filed a petition for a writ of habeas corpus pursuant to 28 U .S .C . § 2254 and paid the $5.00 filing fee. In a June 25, 2010, Decision and Order, based u p o n preliminary review as required by Rule 4 of the Rules Governing Section 2254 Cases in U n ite d States District Courts, the Court noted that Payano listed the following three grounds f o r relief: (1) his conviction was obtained in violation of the Fourth Amendment "knock and an n o u n ce " requirement; (2) his Fourteenth Amendment right was violated by the trial court's im p ro p e r admission of other acts evidence; and, (3) the trial court's admission of the c o n f id e n tia l informant's testimony violated his Fifth and Fourteenth Amendment rights. See P a y a n o v. Grams, No. 10-C-475, 2010 WL 2605241, at *1 (E.D.Wis. June 25, 2010). A lth o u g h Payano indicated that he had presented the three grounds to the Wisconsin Court of

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A p p e a ls , the Court noted that the appellate court's decision indicates that Payano's conviction ste m s from the execution of a no-knock warrant, but it does not mention any Fourth A m e n d m e n t "knock and announce" issue. Id. at *3-*4. Thus, the Court concluded that there w as no support for Payano's contention that he raised the knock and announce issue before th e court of appeals. Id. at *4. Payano also did not contend that he raised the "knock and a n n o u n c e" issue before the Wisconsin Supreme Court. Consequently, the Court determined th a t Payano had not exhausted his first ground for relief because it had not been adjudicated b y a complete round of state appellate review. Id. at *4. As such, the Court characterized the p e titio n as a "mixed petition" which may not adjudicated by this Court. Id. (citing Rose v. L u n d y , 455 U.S. 509 (1982)). The Court advised Payano that he could either return to state c o u rt to exhaust his Fourth Amendment claim, or amend his petition to delete the unexhausted c la im . By a statement filed on July 6, 2010, Payano states that he raised his Fourth A m e n d m e n t claim in a motion for reconsideration that he filed with the Wisconsin Supreme C o u rt. However, he also states that he wants to go ahead on the claims that the Court deemed e x h a u ste d and, therefore, is moving to amend his petition to dismiss the Fourth Amendment c la im . Payano's response provides additional information in support of his contention th a t ground one was exhausted. If Payano has exhausted all three grounds, then the petition w o u ld not be a mixed petition and he could proceed on his three grounds for relief.

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R e sp o n d e n t Gregory Grams ("Grams") may be able to provide the Court with a d d itio n a l information from the state court record that would disclose whether Payano has ex h au s ted his Fourth Amendment claim. Therefore, before taking further action, the Court w ill direct Grams to file a statement, together with any supporting materials, that addresses w h ethe r Payano presented his Fourth Amendment claim for one complete round of state court rev ie w , and afford Payano an opportunity to respond to those filings. Thereafter, the Court w ill determine whether to adopt Payano's agreement that ground one should be dismissed p u rs u a n t to Rose v. Lundy, 455 U.S. at 509, or whether Grams should be required to file an a n s w e r to the three grounds of Payano's petition. NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: On or before August 23, 2010, Grams MUST file a statement, together with a n y supporting materials, that addresses whether Payano presented his Fourth Amendment c la im for one complete round of review by the Wisconsin state courts. Payano may file a response to that submission on or before September 23, 2010. Dated at Milwaukee, Wisconsin this 22nd day of July, 2010. BY THE COURT s / Rudolph T. Randa HON. RUDOLPH T. RANDA U .S . District Judge

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