Powells v. Pollard

Filing 22

ORDER signed by Judge J P Stadtmueller on 5/3/13: Petitioner shall file not later than 20 days from the date of this order either: (i) a motion for miscellaneous relief requesting deletion of the unexhausted grounds (6 and 7) from his habeas petiti on; or (ii) a voluntary dismissal of his petition altogether - failure to file such a submission in accordance with the deadline set forth above will result in his petition being dismissed with prejudice and without further notice; denying without prejudice 17 Respondent's Motion to Dismiss; granting nunc pro tunc 19 Petitioner's Motion requesting 20 his opposition brief be treated as timely-filed; the Court deems 20 Petitioner's opposition brief timely-filed. See Order. (cc: Petitioner, all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RUDOLPH POWELLS,
Petitioner,
v.

Case No. 12-CV-824-JPS

WILLIAM POLLARD,
Respondent.

ORDER

Wisconsin state prisoner Rudolph Powells (“Powells”), proceeding pro
se, seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Docket #1). Earlier
proceedings in this case found that the limitation period set forth in 28 U.S.C.
§ 2244(d)(1)(A), as applied to Powells’ course of direct appeal, expired on
July 11, 2012 (Docket #12, 2), and the prison mailbox rule rendered the
present petition timely because Powells appears to have lodged a postage
disbursement request for his petition with prison officials on July 10, 2012.
(Id., 2-3).
Powells’ petition concedes that his sixth and seventh grounds for relief
(out of seven total) have not been exhausted in state court. Accordingly,
respondent William Pollard moves to dismiss the petition in this case (Docket
#1) for failure to exhaust state remedies unless Powells deletes his
unexhausted claims. (Docket #17).1
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
1

Powells asks the Court (Docket #19) to accept his belated brief in
opposition (Docket #20) as timely-filed. Against the backdrop of the record in this
case, the Court will grant the requested extension nunc pro tunc and consider
Powells’ opposition brief (Docket #20) timely-filed.

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 establishing 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).
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
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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
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.
Powells submits that he commenced a collateral attack in state courts
“on August 2, 2012." (Docket #20, 2). However, that would mean that
Powells’ collateral attack commenced after the § 2254 limitation period had
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expired so no tolling accrues.2 Given that the § 2254 limitation period has
expired, if the Court dismisses Powells’ mixed petition altogether pursuant
to Lundy and 28 U.S.C. § 2254(b)(1)(A), any § 2254 petition subsequently
re-filed by Powells would be untimely. Therefore, in accordance with the
teachings of Rhines, the Court turns to whether there was good cause for
Powells’ failure to exhaust grounds six and seven in state court prior to filing
his habeas petition.
Powells submits two potential bases for a finding of good cause:
(i) “his appellate counsel was ineffective for failing to raise the [unexhausted]
claims on his direct appeal” (Docket #20, 7); and (ii) Powells proceeds pro se
(Docket #20, 8).
Failure of appellate counsel to raise Powells’ present grounds six and
seven in the course of direct appeal does not excuse, let alone provide good
cause for, Powells’ failure to promptly bring a collateral attack. More than a
year lapsed between the time the Wisconsin Supreme Court denied review
in the course of Powells’ direct appeal and the filing of the present petition,
see (Docket #12, 2), yet Powells simply did not act. His inaction is plainly
insufficient to constitute good cause.
Moreover, “[m]ost courts…agree that the mere fact that a petitioner
is acting pro se or lacks knowledge of the law does not establish ‘good cause,’
for the reason that virtually any prisoner could make this showing.” Johnson
v. Huibregtse, No. 07–cv–674, 2008 WL 4621345, *7 (W.D.Wis. March 14, 2008)
(citing Smith v. Giurbino, No. 06cv700, 2008 WL 80983, *5 (S.D.Cal. Jan. 7,

2

As noted supra, the limitation period set forth in 28 U.S.C. § 2244(d)(1)(A),
as applied to Powells’ course of direct appeal, expired on July 11, 2012.
(Docket #12, 2).

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2008); Brummett v. Clark, No. CIV S–07–0379, 2007 WL 1302503, *1 (E.D.Cal.
May 1, 2007); Johnson v. Sullivan, No. CV04–7923ABC, 2006 WL 37037, *3
(C.D.Cal. Jan. 4, 2006)). This Court concurs and finds that Powells’ pro se
status does not provide a sufficient basis to establish good cause for failure
to exhaust state court remedies.
Finding no sufficient basis to establish good cause for Powells’ failure
to exhaust grounds six and seven in state court, the Court is obliged to deny
Powells’ request to stay this case and hold his petition in abeyance.
At this juncture, if Powells wishes to proceed under § 2254, he
must file a motion for miscellaneous relief requesting deletion of the
unexhausted grounds (six and seven) from his federal habeas petition
(Docket #1). Otherwise, the Court is obliged to and will dismiss his mixed
petition altogether pursuant to Lundy and 28 U.S.C. § 2254(b)(1)(A).
Accordingly,
IT IS ORDERED that petitioner Rudolph Powells shall file not later
than 20 days from the date of this order either: (i) a motion for miscellaneous
relief requesting deletion of the unexhausted grounds (six and seven) from
his federal habeas petition; or (ii) a voluntary dismissal of his petition
altogether (which would effectively terminate his opportunity for relief
under § 2254). If Powells fails to file such a submission in accordance with
the deadline set forth above, his petition will be dismissed with prejudice
and without further notice;
IT IS FURTHER ORDERED that Respondent’s motion to dismiss
(Docket #17) be and the same is hereby DENIED without prejudice; and

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IT IS FURTHER ORDERED that Petitioner’s motion (Docket #19),
requesting his opposition brief (Docket #20) be treated as timely-filed, be and
the same is hereby GRANTED nunc pro tunc; the Court hereby deems the
petitioner’s opposition brief (Docket #20) to be timely-filed.
Dated at Milwaukee, Wisconsin, this 3rd day of May, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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