Evans v. Huibregtse

Filing 5

ORDER signed by Judge Lynn Adelman on 12/8/11 that plaintiff shall inform the court within 21 days of the date of this order whether he wishes to withdraw his habeas petition. Further ordering Motion for Leave to Proceed in forma pauperis 2 is granted. (cc: all counsel, via USPS to petitioner) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSEPH WAYNE EVANS, JR.,
Petitioner,
v.

Case No. 11-C-1091

PAUL HUIBREGTSE, Warden,
Wisconsin Secure Program Facility,
Respondent.

ORDER
On November 17, 2011, Joseph Wayne Evans, Jr., filed this petition pursuant to 28
U.S.C. § 2254 with regard to his state court conviction and sentence. Petitioner was
convicted in Marinette County Circuit Court of first degree intentional homicide and criminal
damage to property. He is currently incarcerated at the Wisconsin Secure Program
Facility.
Petitioner raises two issues in his petition, but it appears that he is currently
exhausting a third claim in state court involving ineffective assistance of appellate counsel.
Under 28 U.S.C. § 2244, a petitioner gets only one opportunity for federal habeas review.
This means that if petitioner were to proceed with his first two claims at this time, he would
be forfeiting federal review of his third, unexhausted claim. Petitioner seems to recognize
this, in that he asks that I “toll” the one-year statute of limitations while he exhausts his third
claim. However, because petitioner has filed a state habeas petition with respect to his
conviction, the statute of limitations is already tolled by virtue of § 2244(d)(2), which
provides: “The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending shall not

be counted toward any period of limitation under [§ 2244].” In other words, so long as the
state habeas proceedings are pending, the one-year statute of limitations for filing a federal
habeas petition with respect to the conviction will not begin to run.1
Thus, because I assume that petitioner will want to preserve his right to federal
habeas review of his claim of ineffective assistance of appellate counsel, I will give him an
opportunity to withdraw the present petition. Again, petitioner should be aware that if he
does not withdraw the present petition, he will almost certainly be waiving his right to
federal review of the ineffective-assistance claim, since under § 2244 a petitioner is entitled
to only one round of federal habeas review and cannot split his claims among multiple
petitions. If petitioner decides to withdraw the present petition, he may file a fresh petition
that includes all three of his claims after the state proceedings regarding ineffective
assistance of appellate counsel are complete.
THEREFORE, IT IS ORDERED that plaintiff shall inform the court within 21 days
of the date of this order whether he wishes to withdraw his habeas petition.
IT IS FURTHER ORDERED that petitioner’s motion to proceed in forma pauperis
is GRANTED.
Dated at Milwaukee, Wisconsin, this 8th day of December 2011.

s/__________________________________
LYNN ADELMAN
District Judge
1

This assumes that the state habeas petition was “properly filed.” I assume that it
was, but petitioner is advised to ensure that his state-court filings are not deficient in any
manner. I see that petitioner’s original state habeas petition was stricken due to
petitioner’s failure to meet the page limit and to verify the petition, but petitioner has re-filed
that petition, and I assume he has corrected those deficiencies.
2