Tatum v. Foster

Filing 68

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 11/21/2017. 65 Petitioner's MOTION for ruling on jurisdiction DENIED. 66 Petitioner's MOTION for release DENIED. 1 Petitioner's petition for writ of habeas corpus GRANTED, but no writ shall issue based on respondent's steps to give petitioner a new trial consistent with 7th Circuit's mandate. Case DISMISSED. (cc: all counsel, via mail to Robert Tatum at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ROBERT L. TATUM,
Petitioner,
v.

Case No. 13-cv-1348-pp

WARDEN SCOTT ECKSTEIN,
Respondent.

ORDER DENYING PETITIONER’S MOTION FOR ORDER TO ISSUE RULING
ON JURISDICTION (DKT. NO. 65), DENYING PETITIONER’S MOTION FOR
ORDER FOR RELEASE (DKT. NO. 66), AND ORDERING CLERK’S OFFICE
TO CLOSE CASE
______________________________________________________________________________
I.

Introduction
In March of this year, the Seventh Circuit Court of Appeals reversed and

remanded this court’s order denying the petitioner’s request for a writ of
habeas corpus. Dkt. No. 57. The appellate court ordered this court to issue the
writ if, within ninety days of its decision, the state did not take steps to retry
the petitioner. Id. Seventy-four days later, the Seventh Circuit recalled the
mandate, and stayed the case pending the United States Supreme Court’s
disposition of the respondent’s petition for writ of certiorari. Dkt. No. 58. The
United States Supreme Court recently denied the petition for writ of certiorari,
and the Seventh Circuit has re-issued its mandate. Dkt. No. 67.
Meanwhile, the petitioner has filed two motions—a motion asking this
court to make a ruling on jurisdiction, dkt. no. 65, and a motion for an order

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releasing him, dkt. no. 66. Because the case has returned to this court, the
court will rule on—and deny—both of those motions.
II.

Procedural History
On September 24, 2014, Judge Rudolph T. Randa issued an order

denying the petitioner’s motion for writ of habeas corpus and declining to issue
a certificate of appealability. Dkt. No. 25. Judgment entered that same day
(dkt. no. 26), and the petitioner filed a timely notice of appeal. Dkt. No. 28.
Almost two and a half years later, the Seventh Circuit Court of Appeals decided
that the Wisconsin courts unreasonably applied Faretta v. California, 422 U.S.
806 (1975) when they refused to allow the petitioner to represent himself. The
Seventh Circuit reversed Judge Randa’s decision, and remanded to this court
with directions that, unless the respondent initiated steps to give the petitioner
a new trial within ninety days of issuance of the mandate, this court must
issue the writ of habeas corpus,. Tatum v. Foster, 847 F.3d 459, 469 (7th Cir.
2017). The mandate issued on March 9, 2017. Dkt. No. 57.
The respondent, however, decided to petition the United States Supreme
Court for certiorari, and in May of 2017, he filed a motion to recall the mandate
and to stay the mandate pending certiorari review in the United States Supreme
Court. The respondent indicated that he intended to file a petition for writ of
certiorari, and that the state “fully intend[ed] to retry Mr. Tatum for double
homicide if the Supreme Court denies certiorari.” Tatum v. Foster, Appeal No.
14-3443, Dkt. No. 86 at 2. The Seventh Circuit granted that motion, and
recalled and stayed the mandate pending the final disposition of the petition
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before the Supreme Court. The order expressly stated that the stay would
remain in place pending the Supreme Court’s decision. Id. at Dkt. No. 87.
A short time later, the petitioner asked the Seventh Circuit to release him
pending that review. Dkt. No. 60. The Seventh Circuit denied that request in an
order that included the following language:
This court has stayed its mandate, and the ninety-day period
during which the state must initiate steps to retry or release the
appellant has not expired. Nor has the time under the Speedy
Trial Act begun to run, as the appellant argues. Even though we
have ordered the appellant released if the state does not initiate
steps to give him a new trial within ninety days, there are
compelling reasons to deny release pending review of our
decision. See Fed. R. App. P. 23(c). The state has represented
that it intends to retry the appellant for double homicide if the
United States Supreme Court denies certiorari or affirms this
court's decision after granting certiorari, the appellant had been
sentenced to life in prison without the possibility of release, and
our decision was based on the unreasonable application of
Faretta v. California, 422 U.S. 806 (1975).
Id. at Dkt. No. 94.
On October 16, 2017, the United States Supreme Court denied the
petition for writ of certiorari. Id. at Dkt. No. 95. The electronic docket (available
on the Seventh Circuit website) indicates that the mandate issued the next day.
Id. at Dkt. No. 96. The notice of issuance of mandate, which is on the Seventh
Circuit website, states, “Herewith is the mandate of this court in this appeal,
along with the Bill of Costs, if any. A certified copy of the opinion/order of the
court and judgment, if any, and any direction as to costs shall constitute the
mandate.” Id. at Dkt. No. 96. The next docket entry on the Seventh Circuit
docket states, “FOR COURT USE ONLY: Certified copies of the 01/31/2017
Opinion and Judgment, 3/1/17 Rehearing Denial Order, 5/22/17 Order
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Recalling and Staying Mandate pending disposition of Writ of Certiorari,
10/16/17 Supreme Court Order Denying Writ of Certiorari with 10/17/17
Mandate sent to the District Court Clerk.” https://ecf.ca7.uscourts.gov/cmecf.
Through inadvertence or clerical error, though, this court did not receive notice
that the mandate had issued, nor did it receive a copy of the mandate. The
court did not discover that the mandate had issued until the week of November
13, 2017—that is why it only now is ruling on the petitioner’s motions.
Meanwhile, the Milwaukee County Circuit Court docket in the underlying
felony case shows that on October 25, 2017, the Milwaukee County Circuit
Court clerk’s office converted the petitioner’s paper case file to an electronic
filing case. State v. Tatum, Milwaukee County Case No. 2010CF002660,
available at http://wcca.wicourts.gov, Dkt. No. 17. On that same date, the
clerk’s office scheduled the petitioner for a hearing on November 13, 2017; the
docket entry says, “State will produce defendant for the hearing.” Id. at Dkt.
No. 15. The petitioner clearly was aware that the state had taken steps to get
him back into state court, because on November 1, 2017, he filed a motion to
audio-record any hearings in the case, id. at dkt. no. 11, and a motion for
dismissal based on lack of subject-matter jurisdiction, id. at dkt. no. 10. The
state court denied the motion for audio recording on November 3, 2017. Id. at
Dkt. No. 8.
On November 13, 2017, the defendant appeared in Milwaukee County
Circuit court before Judge Mark Sanders. Id. at Dkt. No. 6. At that hearing, the
state-court judge vacated the 2011 judgment of conviction, and addressed the
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question of bail. The defendant made a Speedy Trial demand, but refused the
offer of a public defender to represent him, stating that he wanted to represent
himself. Id. The court appointed stand-by counsel, and adjourned the case for
motions and for trial; it set a deadline of December 8, 2017 for any party to file
motions. Id. The court set bail at $500,000. Id. at Dkt. No. 5. The court also
entered on the record the defendant’s speedy trial demand. Id. at Dkt. No. 4.
III.

The Petitioner’s Pending Federal Motions
A.

Motion for U.S. District Judge (Pepper) to Issue a Ruling on
Jurisdiction (Dkt. No. 65)

A little over two months after the Seventh Circuit recalled the mandate,
the petitioner filed a motion asking this court to issue a ruling on jurisdiction.
Dkt. No. 65. The petitioner stated that “on information and belief,” the
respondent had not filed a petition for certiorari with the Supreme Court, and
he argued that this court had jurisdiction over his case and should issue the
writ of habeas corpus. Id. at 1. The petitioner asserted that the Supreme Court
rules required the respondent to file the certiorari petition within ninety days of
the Seventh Circuit’s final decision, and calculated that this meant that the
respondent was required to file the petition by May 30, 2017. He further argued
that because the respondent hadn’t timely filed a petition with the Supreme
Court, the ninety-day clock the Seventh Circuit had set for issuing the writ of
habeas corpus had started to run again as of May 30, and that because the
state hadn’t taken steps to retry him by the time that clock expired, this court
had jurisdiction (and obligation) to issue the writ of habeas corpus and release

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him immediately. Id. The petitioner made some other allegations, but they are
not relevant to the question of whether the respondent timely filed the petition
for certiorari and whether this court had jurisdiction.
Did the respondent timely file a petition for certiorari with the United
States Supreme Court? He did. The Seventh Circuit denied the petitioner’s
petition for rehearing on March 1, 2017. Dkt. No. 57 at 21. Rule 13 of the
Rules of the Supreme Court of the United States requires a party to file the
petition for certiorari within “90 days after entry of judgment.” The rule
specifies that the “entry of judgment” refers to the date the order sought to be
reviewed is entered, not the date of the issuance of the mandate. The petitioner
is correct that ninety days from the date the Seventh Circuit denied his petition
for rehearing was May 30, 2017.
One may access the United States Supreme Court docket at
https://www.supremecourt.gov. This court did so, and entered the petitioner’s
name. The court found that on May 30, 2017, the Supreme Court docketed a
petition for a writ of certiorari in Case No. 16-1424, Brian Foster, Petitioner v.
Robert L. Tatum. The docket shows, then, that the respondent timely filed a
petition for writ of certiorari.
The Supreme Court denied the petition on October 16, 2017. Id. The
Seventh Circuit re-issued the mandate the next day. Dkt. No. 67. It was only at
that time—two and a half months after the petitioner filed his motion asking
this court to assume jurisdiction—that jurisdiction returned to this court. At

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the time the petitioner filed his motion, this court did not have jurisdiction, and
was not under an obligation to issue a writ of habeas corpus releasing him.
The petitioner also correctly notes that when the Seventh Circuit issued
the original notice of mandate on March 9, 2017, that triggered the ninety-day
period for the state to take steps to retry him. The Seventh Circuit stayed the
mandate on May 22, 2017—the petitioner is correct that at that point, seventyfour days had expired on that ninety-day clock.
The Seventh Circuit re-issued the mandate on October 16, 2017. At that
point, the ninety-day clock resumed, with sixteen days remaining on it. Sixteen
days from October 16, 2017 was November 1, 2017. As the court discussed
above, during those sixteen days, the state court converted the case to
electronic filing and scheduled a hearing, the state agreed to produce the
defendant for that hearing and the defendant filed two motions. Since the
ninety-day period set by the Seventh Circuit has expired, the defendant has
appeared in court and the court has set a motions deadline and indicted that it
will schedule dates for a final pretrial and a trial. The state has “taken steps” to
retry the petitioner, and has done so timely. The petitioner’s August motion
asking the court to assume jurisdiction is without merit, and the court will
deny the motion.
B.

Motion for Tatums Release by Issuance of Habeas Corpus Write
(Dkt. No. 66)

On October 31, 2017, after jurisdiction had returned to this court, the
petitioner filed a motion asking this court to release him, arguing that more
than ninety days had expired since the Seventh Circuit had issued the original
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mandate. Dkt. No. 66. The petitioner first argued that “[u]nder normal rules +
precedent related to determining when time limits start and are violated the 90day limited started on 1-31-17 and expired prior to the 5-22-17 stay of the
mandate + case.” Id. at 1. January 31, 2017 is the date on which the Seventh
Circuit issued its decision and order reversing and remanding the case to this
court. Dkt. No. 57 at 1. In support of his argument that the ninety days started
running from the date of the decision and order, and not from the date of the
original notice of mandate on March 9, 2017, the petitioner cites United States
v. Pansier, 576 F.3d 726, 732-33 (7th Cir. 2009). That case involved the
question of how to calculate the Speedy Trial clock under 18 U.S.C.
§3161(h)(1)(D). The Speedy Trial Act is not relevant to the question of when the
ninety-day time limit for the state to retry the defendant began to run; the
Seventh Circuit’s own order answers that question. The Seventh Circuit’s
January 31, 2017 decision and order specifically stated that this court was
required to issue the writ of habeas corpus “unless the state within 90 days of
issuance of this court’s mandate initiates steps to give Tatum a new trial.” Dkt.
No. 57 at 19 (emphasis added).
Next, the petitioner argued that even if the ninety-day clock began to run
on March 9, 2017 (the date of the notice of issuance of the original mandate),
this court should not toll any time after the Seventh Circuit withdrew the
mandate on May 22, 2017 because there is “no admissible proof” that the
respondent timely filed a petition for certiorari with the Supreme Court. Dkt.

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No. 66 at 1. The court’s own review of the Supreme Court’s public docket
provides proof that the respondent did timely file a petition on May 30, 2017.
The petitioner next argues that the respondent is committing various
kinds of misconduct. Dkt. No. 66 at 2-3. Whether the respondent is or is not
committing misconduct in the state court case is not relevant to whether this
court should issue the habeas corpus writ in the federal case.
Finally, the petitioner asserts that the delay he has experienced in being
released is a violation of the Due Process clause. Dkt. No. 66 at 3. The
petitioner’s due process rights have not been violated. The Seventh Circuit
issued the original mandate on March 9, 2017, eight months and eleven days
ago. For four months and twenty-four days of that time, the respondent was
legally pursuing certiorari in the Supreme Court. For twenty-six days of that
time, the state has been pursuing retrial in Milwaukee County Circuit Court.
The respondent has acted promptly and in accordance with the Seventh
Circuit’s orders, and the petitioner has had an opportunity to request bail in
the state court. The court will deny the petitioner’s motion for release.
IV.

Conclusion
The court DENIES the petitioner’s motion for ruling on jurisdiction. Dkt.

No. 65. The court DENIES the petitioner’s motion for release. Dkt. No. 66.
The Milwaukee County Circuit Court docket shows that the state has
initiated steps to give the petitioner a new trial. For that reason, the court has
no basis for issuing a writ of habeas corpus. The court ORDERS that the
petitioner’s petition for writ of habeas corpus is GRANTED but no writ shall
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issue based on the respondent’s steps to give the petitioner a new trial
consistent with the Seventh Circuit Court of Appeals’s mandate. The court
further ORDERS that this case is DISMISSED.
Dated in Milwaukee, Wisconsin this 21st day of November, 2017.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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