Russell v. Ross

Filing 16

ORDER signed by Judge J P Stadtmueller on 1/8/13 that petitioner shall file not later than 20 days from the date of this order a submission that: (i) shows good cause for failing to fairly present the Ineffective Assistance Ground to the Wisconsin Su preme Court in the course of his direct appeal; or (ii) requests: (a) deletion of the Ineffective Assistance Ground from 1 his federal habeas petition; and (b) review of the Due Process Ground based on the briefing already before the Court. If petitioner fails to file such a submission in accordance with the deadline set forth above, his petition will be dismissed without further notice. (cc: petitioner, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CLAY E. RUSSELL,
Petitioner,
v.

Case No. 12-CV-86-JPS

SUPERINTENDENT SUSAN ROSS,
Respondent.

ORDER

On January 27, 2012, petitioner Clay E. Russell (“Russell”) filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket #1).
Russell challenges his present incarceration at a state correctional facility in
Wisconsin (Docket #’s 1 and 15) on two theories: (1) Russell was deprived of
due process when the state failed to collect, retain and preserve certain
physical evidence from the crime scene (the “Due Process Ground”) (Docket
#1, 6); and (2) Russell’s trial counsel rendered him ineffective assistance
by failing to “properly litigate” the Due Process Ground (the “Ineffective
Assistance Ground”) (Docket #1, 7).
In its initial screening order pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts, the Court observed
that “Russell appears to have exhausted his state remedies.” (Docket #5, 3)
(emphasis added).
Respondent Superintendent Susan Ross (“Ross”) submits that Russell
failed to pursue the Ineffective Assistance Ground “through one complete
round of state-court review.” (Docket #13, 2).1 Russell’s petition to the

1

Russell’s petition indicates that he pursued only a direct course of appeal
(in contrast to a collateral round of appeal in the state courts). (Docket #1, 4).

Wisconsin Supreme Court for review of a decision of the Court of Appeals
of Wisconsin presented only the Due Process Ground. See (Docket #8-6, 123);2 (Docket #13, 11). That petition for review was denied on January 11,
2011. (Docket #8-8). Therefore, the Court is obliged to conclude that Russell
has not exhausted the Ineffective Assistance Ground.
A federal district court may not address the merits of constitutional
claims raised in a federal habeas petition "unless the state courts have had a
full and fair opportunity to review them." Farrell v. Lane, 939 F.2d 409, 410
(7th Cir. 1991). In other words, a state prisoner is required to exhaust the
remedies available in state court before a district court will consider the
merits of a federal habeas petition. 28 U.S.C. § 2254(b)(1)(A). In particular,
“[s]tate prisoners must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of the State’s
established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). The petitioner has the burden of proving his compliance with the
exhaustion requirement. Baldwin v. Lewis, 442 F.2d 29, 35 (7th Cir. 1971).
In Rhines v. Weber, the U.S. Supreme Court confronted “the problem
of a ‘mixed’ petition for habeas corpus relief in which a state prisoner
presents a federal court with a single petition containing some claims that
have been exhausted in state courts and some that have not.” 544 U.S. 269,
271 (2005).

2

Under a heading titled “The issues presented are as follows:” Russell
submitted only one issue: “I. RUSSELL WAS DENIED HIS RIGHT TO DUE
PROCESS OF THE LAW BY THE FAILURE OF STATE OR POLICE TO RETAIN
AND PRESERVE KEY PHYSICAL EVIDENCE FROM CRIME SCENE.” (Docket #86. 4). Moreover, Russell does not point the Court to any passage in that petition that
might evidence fair presentment of the Ineffective Assistance Ground and the
Court finds no such passage.

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Prior to the enactment of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), the U.S. Supreme Court held that “federal
district courts may not adjudicate mixed petitions for habeas corpus, that is,
petitions containing both exhausted and unexhausted claims.” Rhines, 544
U.S. at 273 (2005) (citing Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d
379 (1982)). Rhines confronted “the problem of a ‘mixed’ petition” in the postAEDPA landscape:
The enactment of AEDPA in 1996 dramatically altered the
landscape for federal habeas corpus petitions. AEDPA
preserved Lundy's total exhaustion requirement, see 28 U.S.C.
§ 2254(b)(1)(A) (“An application for a writ of habeas
corpus…shall not be granted unless it appears that…the
applicant has exhausted the remedies available in the courts of
the State”), but it also imposed a 1-year statute of limitations on
the filing of federal petitions, § 2244(d). Although the
limitations period is tolled during the pendency of a “properly
filed application for State post-conviction or other collateral
review,” § 2244(d)(2), the filing of a petition for habeas corpus
in federal court does not toll the statute of limitations, Duncan,
533 U.S., at 181-182, 121 S.Ct. 2120.
As a result of the interplay between AEDPA's 1-year statute of
limitations and Lundy's dismissal requirement, petitioners who
come to federal court with “mixed” petitions run the risk of
forever losing their opportunity for any federal review of their
unexhausted claims. If a petitioner files a timely but mixed
petition in federal district court, and the district court dismisses
it under Lundy after the limitations period has expired, this will
likely mean the termination of any federal review.
...
We recognize the gravity of this problem and the difficulty it
has posed for petitioners and federal district courts alike. In an
attempt to solve the problem, some district courts have
adopted a version of the “stay-and-abeyance” procedure
employed by the District Court below. Under this procedure,
rather than dismiss the mixed petition pursuant to Lundy, a
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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 remedies, the district court will lift the stay and allow
the petitioner to proceed in federal court.
544 U.S. at 271 and 274-276.
After weighing various competing interests, the Rhines court held that
“stay and abeyance is only appropriate when the district court determines
there was good cause for the petitioner’s failure to exhaust his claims in state
court.” Id. at 277. Here, the parties have not submitted briefing on whether
Russell has good cause for failing to fairly present the Ineffective Assistance
Ground to the Wisconsin Supreme Court in the course of his direct appeal.
If Russell cannot show good cause (which, the Court notes, is not a trivial
hurdle to overcome), he may delete the Ineffective Assistance Ground from
his federal habeas petition and proceed with only the Due Process Ground.3

3

See Rhines, 544 U.S. at 278 (“[I]f a petitioner presents a district court with a
mixed petition and the court determines that stay and abeyance is inappropriate,
the court should allow the petitioner to delete the unexhausted claims and to
proceed with the exhausted claims if dismissal of the entire petition would
unreasonably impair the petitioner's right to obtain federal relief.”)
If Russell is unable to show good cause for failing to fairly present the
Ineffective Assistance Ground to the Wisconsin Supreme Court in the course of his
direct appeal (again, not a trivial hurdle to overcome), then stay-and-abeyance is
inappropriate. See Rhines, 544 U.S. at 277. Given that the Court found in its Rule 4
Screening Order that “Russell’s conviction became final 90 days subsequent the
Wisconsin Supreme Court’s denial of his petition for review, that is April 11, 2011,"
a dismissal of Russell’s entire petition at this juncture (or hereafter) would
unreasonably impair his right to obtain federal relief on his Due Process Ground
because a subsequently re-filed petition under § 2254 would be untimely. See
§2244(d) (imposing a 1-year statute of limitations on the filing of federal petitions).

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In summary, if Russell wishes to proceed under § 2254, then he has
two options at this juncture: (1) show good cause for failing to fairly present
the Ineffective Assistance Ground to the Wisconsin Supreme Court in the
course of his direct appeal; or (2) file a motion for miscellaneous relief that
requests: (a) deletion of the Ineffective Assistance Ground from his federal
habeas petition (Docket #1); and (b) review of the Due Process Ground based
on the briefing already before the Court.
Accordingly,
IT IS ORDERED that petitioner Clay E. Russell shall file not later
than 20 days from the date of this order a submission that: (i) shows good
cause for failing to fairly present the Ineffective Assistance Ground to the
Wisconsin Supreme Court in the course of his direct appeal; or (ii) requests:
(a) deletion of the Ineffective Assistance Ground from his federal habeas
petition (Docket #1); and(b) review of the Due Process Ground based on the
briefing already before the Court. If Russell fails to file such a submission
in accordance with the deadline set forth above, his petition will be
dismissed without further notice.
Dated at Milwaukee, Wisconsin, this 8th day of January, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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