Shannon v. Pollard
ORDER signed by Judge J.P. Stadtmueller on 11/8/2017 DENYING 24 Petitioner's Motion to Continue Stay and Abeyance. Within 21 days, Petitioner to file copies of all decisions of Wisconsin courts relating to his post-conviction motion; failure to do so will result in dismissal of this action. (cc: all counsel, via mail to Terry S. Shannon at Waupun Correctional Institution) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRY S. SHANNON,
Case No. 14-CV-980-JPS
WILLIAM J. POLLARD,
Over three years ago, this Court granted Petitioner’s motion for a
stay and abeyance to permit him to exhaust his state-court remedies with
respect to his claims raised in this habeas case. (Docket #9). Petitioner
pursued exhaustion of his claims in the state courts and offered periodic
status updates at the Court’s behest. See (Docket #11, #13, #15, #17, #19,
#21). As the Court noted only last week, it appears that Petitioner’s efforts
at exhaustion have been completed. Publically available state court
records reveal that the Wisconsin Court of Appeals affirmed the denial of
his motion for post-conviction relief in December 2016, and the Wisconsin
Supreme Court denied Petitioner’s petition for review in April 2017.
Having failed to file additional status updates as required by the
Court, see (Docket #23), and facing the prospect of finally having to move
forward on his claims, Petitioner offers a new justification to continue the
stay and abeyance procedure in this case: the pendency of his codefendant’s motion for post-conviction relief in Wisconsin state court.
(Docket #24). His co-defendant (and brother) is operating with the
assistance of counsel, and counsel filed a new motion for post-conviction
relief on August 25, 2017. (Docket #24-1). In the motion, counsel argues
that new evidence shows that the Shannon brothers acted in self-defense
during the gun battle that resulted in the death of Bennie Smith (“Smith”)
and the Shannons’ convictions. Id. at 3. Specifically, one of the alleged
victims recently told a fellow prison inmate that it was he who
accidentally shot Smith first (though his bullet did not kill Smith) and that
he and his cohorts started shooting before the Shannons returned fire. Id.
In fact, this purported victim laughed that the Shannons were being held
responsible for a killing they did not commit. Id.
Petitioner’s motion must be denied. Stay and abeyance exists to
permit a petitioner to exhaust his state-court remedies as to claims
asserted in his petition. Rhines v. Weber, 544 U.S. 269, 271 (2005). It does not
exist to permit endless delay of the day of judgment on the hope that some
favorable evidence may reveal itself. Petitioner’s own claims having been
fully exhausted, there is no longer any viable basis to invoke the stay-andabeyance procedure.
Moreover, even if the Court construed Petitioner’s motion as one
seeking leave to amend his petition to add his brother’s new claim as one
of his own, see Fed. R. Civ. P. 15(a), the Court would nevertheless deny the
request to stay and abey during exhaustion of that claim. A district court’s
decision to permit or deny this procedure is cabined only by its sound
discretion. See Rhines, 544 U.S. at 278. Normally, courts consider whether
the petitioner had good cause for his failure to exhaust the claim in
question, whether the unexhausted claim is potentially meritorious, and
whether the petitioner engaged in intentionally dilatory litigation tactics.
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Whether these factors militate for or against a stay, the Court must
in this case return to the central teaching of Rhines—namely, that the
availability of stay and abeyance “should be available only in limited
circumstances.” Id. The Court observed that the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) displays Congress’ “timeliness
concerns” with habeas petitions, including the need to promote finality of
state-court judgments. Id. at 276–77. In the end, even a mixed petition
“should not be stayed indefinitely.” Id. at 277. Thus, despite indications
that stay and abeyance would be proper in this case, the Court is obliged
to conclude, quite simply, that too much time has passed. This case is far
older than any on the Court’s docket, and it is time the case is brought to
conclusion. As a result, the motion for continued stay and abeyance—and
the implied request to amend the petition—will be denied.
Because the stay and abeyance has been completed, the Court must
now screen Petitioner’s claims under Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts. That Rule
authorizes a district court to conduct an initial screening of habeas corpus
petitions and to dismiss a petition summarily where “it plainly appears
from the face of the petition. . .that the petitioner is not entitled to relief.”
This Rule provides the district court the power to dismiss both those
petitions that do not state a claim upon which relief may be granted and
those petitions that are factually frivolous. See Small v. Endicott, 998 F.2d
411, 414 (7th Cir. 1993). Under Rule 4, the Court analyzes preliminary
obstacles to review, such as whether the petitioner has complied with the
statute of limitations, exhausted available state remedies, avoided
procedural default, and set forth cognizable claims.
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Before the Court can turn to screening Petitioner’s asserted grounds
for relief, however, he must file with the Court the decisions of the
Wisconsin trial and appellate courts on his motion for post-conviction
relief that he employed to exhaust the instant claims. Without those
opinions, the Court cannot conclude that Petitioner has avoided
procedural default or exhausted his state remedies as to all of his asserted
grounds for relief. This is because Petitioner concedes in his petition that
his direct appeal touched on only two narrow issues: (1) did the State
violate Brady v. Maryland, 373 U.S. 83 (1963), when it failed to disclose the
medical examiner’s report about the origin of the fatal shot that killed
Smith; and (2) should other-acts evidence introduced at trial have been
excluded. (Docket #1 at 3). His asserted grounds for habeas relief are far
broader. See id. at 6–9. Thus, if the Court considered the petition only on
its face, it would be forced to conclude that procedural default and failure
to exhaust barred most of those grounds. Indeed, this is precisely why
Petitioner sought and was granted a stay and abeyance—to have an
opportunity to present these new claims to the Wisconsin courts.
To satisfy the Court that he has indeed presented his claims to the
Wisconsin courts during the stay and abeyance, the Court must review the
decisions on his post-conviction motion. Petitioner bears the burden on
matters such as procedural default and exhaustion, see Mahaffey v.
Schomig, 294 F.3d 907, 914–15 (7th Cir. 2002), and without providing the
relevant state-court decisions, he cannot meet that burden. Consequently,
the Court will direct Petitioner to file those decisions within twenty-one
(21) days of the date of this Order or face dismissal.
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IT IS ORDERED that Petitioner’s motion to continue stay and
abeyance (Docket #24) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that, within twenty-one (21) days of
the date of this Order, Petitioner shall file copies of all of the decisions of
the Wisconsin courts relating to his post-conviction motion. Failure to do
so will result in dismissal of this action.
Dated at Milwaukee, Wisconsin, this 8th day of November, 2017.
BY THE COURT:
U.S. District Judge
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