Shannon v. Pollard
SCREENING ORDER signed by Judge J.P. Stadtmueller on 12/6/2017. Within 30 days, Petitioner to either: file a letter seeking dismissal of this action while he exhausts claims in state court; or file a letter that he wishes to proceed only on his exhausted claims and file an amended petition that does not include the unexhausted claims. (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,
As noted in prior orders, this case has been under a stay and
abeyance for several years, during which time Petitioner Terry Shannon
(“Shannon”) has sought to exhaust his state-court remedies with respect
to the claims raised in his habeas petition. (Docket #25). Having received
the relevant decision from the Wisconsin Court of Appeals with respect to
Shannon’s recent postconviction motion, see (Docket #26),1 the Court will
now turn to screening the petition under Rule 4 of the Rules Governing
Section 2254 Proceedings.
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
Shannon did not submit all of the pages of the appellate court opinion,
but the Court was nevertheless able to locate it in the Westlaw database: State v.
Shannon, 895 N.W.2d 103, 2016 WL 7177463 (Wis. Ct. App. 2016).
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.
This case arises from a gun battle involving Shannon and his
brother on one side and members of a rival gang, including Bennie Smith
(“Smith”), on the other. The Shannons drove up alongside a car occupied
by Smith and his companions, and the firing began. At the end of the
melee, Smith was dead.
In 2010, Shannon was sentenced in Racine County Circuit Court to
serve life imprisonment without the possibility of parole after a jury
convicted him of first degree intentional homicide while armed, in
violation of Wis. Stat. § 940.01, and discharging a firearm from a vehicle,
in violation of Wis. Stat. § 941.20(3)(a), both as party to a crime. He
appealed two issues: (1) did the State violate its discovery obligations
under Wis. Stat. § 971.23(1)(e), when it failed to disclose the medical
examiner’s opinion that Smith’s fatal gunshot wounds were “atypical,”
meaning they had passed through something before they hit him; and (2)
should certain firearms, ammunition, and drugs found at several Shannon
residences have been excluded at trial as improper other-acts evidence.
The conviction was affirmed, and the Wisconsin Supreme Court denied
the request for discretionary review. Shannon did not seek certiorari to the
United States Supreme Court.
On August 11, 2014, Shannon filed the instant petition. In it, he
raises four grounds for relief. First, he argues that the trial court did not
properly instruct the jury that the absence of self-defense must be proved
by the State, which violated his right to due process of law. (Docket #1 at
6–7). Second, Shannon claims he was provided ineffective assistance of
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trial and appellate counsel, since none of his lawyers investigated his codefendant, his mother, or his daughter’s mother, all of whom allegedly
had exculpatory evidence supporting his claim of self-defense. Id. at 7.
Trial counsel also committed a host of other errors, including failing to
advise him regarding the admissibility of Smith’s history of violent acts
under McMorris v. State, 205 N.W.2d 559 (1973), failing to proffer proper
jury instructions regarding self-defense, failing to investigate the crime
scene and physical evidence, failing to file a motion under Brady v.
Maryland, 373 U.S. 83 (1963), which requested exculpatory and
impeachment evidence, and failing to hire a ballistics expert to rebut the
State’s expert. See id. at 7–8. Appellate counsel purportedly erred by
raising none of these points during direct appeal. Id. at 8.
Third, Shannon says he did not validly waive his right to testify at
trial due to the ineffective assistance of his trial counsel. Id. at 8. In this
ground, which overlaps with ground two, Shannon contends that under
McMorris, he should have testified at trial regarding evidence of violent
acts the victim had committed which he knew about at the time of the
alleged crime, and which would bear on the reasonableness of the claim of
self-defense. See State v. McClaren, 767 N.W.2d 550, 552 (Wis. 2009). He did
not do so because his counsel failed to advise him concerning the value of
such testimony. (Docket #1 at 8).
Finally, Shannon asserts in ground four that the State violated his
due-process rights by withholding Brady evidence—that is, material and
exculpatory evidence—in the form of a medical examiner’s autopsy
report, which contained a statement that Smith’s fatal would was
“atypical.” Id. at 9. This statement, if disclosed, would have been used to
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show that Smith’s fellow passengers may have fired the fatal shot, not one
of the Shannons. See id.2
The Court will first consider the timeliness of the petition. A state
prisoner in custody pursuant to a state court judgment has one year from
the date “the judgment became final” to seek federal habeas relief. 28
U.S.C. § 2244(d)(1)(A). A judgment becomes final within the meaning of
Section 2244(d)(1)(A) when all direct appeals in the state courts are
concluded followed by either the completion or denial of certiorari
proceedings in the U.S. Supreme Court, or if certiorari is not sought, at the
expiration of the ninety days allowed for filing for certiorari. See Ray v.
Clements, 700 F.3d 993, 1003 (7th Cir. 2012).
Here, it appears the petition is timely. Shannon’s direct appeal
concluded on May 13, 2013, and he did not seek certiorari to the Supreme
Court. Thus, his time to file habeas petition began to run on August 11,
2013. This petition was filed exactly one year later, on August 11, 2014.
Consequently, it appears to have been timely filed.
The Court continues its Rule 4 review by examining Shannon’s
petition to determine whether he has exhausted his state remedies. The
district court may not address the merits of the 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). Accordingly, 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); Dressler v.
Notably, although Shannon’s direct appeal included a claim that the trial
court erroneously admitted drugs and guns found at the Shannon residences, no
such claim is found in Shannon’s habeas petition.
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McCaughtry, 238 F.3d 908, 912 (7th Cir. 2001) (if petitioner “either failed to
exhaust all available state remedies or raise all claims before the state
courts, his petition must be denied without considering its merits”). A
petitioner exhausts his constitutional claim when he presents it to the
highest state court for a ruling on the merits. Lieberman v. Thomas, 505 F.3d
665, 669 (7th Cir. 2007) (citing Picard v. Connor, 404 U.S. 270, 275 (1971));
Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir. 2004). Once the state’s
highest court has had a full and fair opportunity to pass upon the merits
of the claim, a prisoner is not required to present it again to the state
courts. Humphrey v. Cady, 405 U.S. 504, 516 n.18 (1972).
Here, some of Shannon’s claims remain unexhausted despite the
Court having afforded him three years of stay and abeyance.3 The Court
will address each ground in turn. In his first ground for relief, Shannon
contends that the jury should have been instructed that the absence of selfdefense was an element of his crime. This claim was presented in a
postconviction motion to the Wisconsin Court of Appeals during the stay
and abeyance, and the court rejected it. Shannon, 895 N.W.2d 103, 2016 WL
7177463, at *3–4. The Wisconsin Supreme Court thereafter denied
discretionary review, State v. Shannon, 898 N.W.2d 583 (2017), and so the
claim is fully exhausted.
Shannon’s second ground for relief has some exhausted and some
unexhausted portions. The claim is framed as one for ineffective assistance
of trial and appellate counsel, which has been exhausted as a general
The unexhausted claims may also be procedurally defaulted, inasmuch
as Wisconsin courts may now refuse to hear them. See Perruquet v. Briley, 390 F.3d
505, 514 (7th Cir. 2004); State v. Escalona-Naranjo, 517 N.W.2d 157, 184 (Wis. 1994).
Since failure to exhaust requires dismissal of the claims, the Court declines to
reach that issue.
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matter. See Shannon, 895 N.W.2d 103, 2016 WL 7177463, at *3–4. But
Shannon’s litany of complaints about his lawyers includes some specific
issues which were never presented to any state court. Among them are
failing to investigate allegedly exculpatory statements by his brother,
mother, and others, failing to investigate the crime scene, erroneous
advice concerning other-acts evidence and Shannon’s right to testify as it
affected his claim of self-defense under McMorris, and failing to hire a
ballistics expert. See (Docket #1 at 7–8).
These issues were never mentioned below, and Shannon
apparently made no effort to raise them during the stay and abeyance
despite representations that he would do so. See id. at 8; Shannon, 895
N.W.2d 103, 2016 WL 7177463, at *3–4. The time for seeking exhaustion is
now over, and these portions of his second ground for relief may not
proceed. Thus, the only portions of ground two that can proceed are
ineffective assistance of trial and appellate counsel arising from: (1) failure
to proffer correct jury instructions;4 and (2) failure to file a Brady motion.5
Shannon’s third ground for relief is also unexhausted. It is
functionally a restatement of the portion of ground two relating to
McMorris and Shannon’s waiver of his right to testify concerning Smith’s
prior violent acts. As noted above, such a claim was not even hinted at in
state court, whether on direct appeal or during stay and abeyance,
although Shannon told the Court that he would raise the issue in a
This overlaps with ground one, and Shannon presented it to the Court of
Appeals during the stay and abeyance. Shannon, 895 N.W.2d 103, 2016 WL
7177463, at *3–4.
This claim is likely unexhausted, as discussed further below, but because
there is a negligible chance that it was presented to the state courts, the Court
will allow the claim to proceed for the time being.
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postconviction motion during the stay. See (Docket #1 at 8–9). The claim
Finally, there is ground four of Shannon’s petition. This ground is
also largely a restatement of a portion of ground two. This time, as a
companion to his ineffective-assistance claim, he alleges that the
government violated his due-process rights by withholding evidence in
contravention of its Brady obligations. The evidence in question, as has
been explained, was that the medical examiner would opine that Smith’s
fatal would was “atypical.”
While Shannon exhausted on direct appeal a claim of a discovery
violation under Wis. Stat. § 971.23(1)(e), the obligations imposed by that
statute are not coterminous with the government’s discovery obligations
under Brady. See Anderson v. Tegels, No. 11–cv–584–wmc, 2014 WL
3928564, at *9–10 (W.D. Wis. Aug. 12, 2014). It appears that in state court,
Shannon chose to frame the issue of the medical examiner’s opinion as a
state statutory violation and not a Brady violation. See (Docket #1-1 at 3–5).
If this is true, then he has not exhausted a Brady claim. The Court cannot
make that determination, however, until it reviews the briefs filed in
connection with the state proceedings, which Respondent will submit in
accordance with the schedule outlined below. Thus, Shannon will be
permitted to proceed on this claim at present.
The Court next reviews Shannon’s petition under Rule 4 to
determine whether he has procedurally defaulted on any of his claims.
Even though a constitutional claim in a federal habeas petition has been
properly exhausted, the Court is still barred from considering the claim if
it has been procedurally defaulted. See Mahaffey v. Schomig, 294 F.3d 907,
915 (7th Cir. 2002). A state prisoner procedurally defaults on a
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constitutional claim in a habeas petition when he fails to raise the claim in
the state’s highest court in a timely fashion or in the manner prescribed by
state law. See O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Thomas v.
McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000). Put differently, procedural
default arises where (1) the petitioner presented the claim to the state
courts and the state court decision rests on an adequate and independent
state-law procedural grounds, or (2) the petitioner did not present the
claim to the state courts and it is clear the state courts would no longer
hear it. Perruquet, 390 F.3d at 514.
Here, it appears that Shannon has not procedurally defaulted on
his properly exhausted claims. From the decisions of the state courts
appended to his petition and the Court of Appeals’ decision on his recent
postconviction motion, it does not appear that a procedural failing stood
in the way of state-court review.
The Court concludes its Rule 4 review by screening for patently
frivolous claims in Shannon’s petition. Ray, 700 F.3d at 996 n.1. Without
expressing any opinion as to the potential merit of Shannon’s properly
exhausted claims, it does not plainly appear that they are frivolous.
Having reviewed the petition under Rule 4, the Court has found
that exhaustion of remedies presents an obstacle to many of the asserted
grounds for relief. A district court may not consider a “mixed” habeas
petition—that is, one which presents exhausted and unexhausted claims.
See Rose v. Lundy, 455 U.S. 509, 510 (1982). Instead, the court must either
dismiss the entire petition or allow the petitioner the opportunity to elect
to proceed only on the exhausted claims. See Rhines v. Weber, 544 U.S. 269,
278 (2005). Normally, the court can also consider a potential stay and
abeyance to permit the petitioner to exhaust his unexhausted claims, see
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id., but because Shannon was already given three years to do exactly that,
the Court will not entertain another stay and abeyance.
Instead, the Court will give Shannon a choice. Either Shannon can:
(1) dismiss this petition in its entirety in order to exhaust all his claims in
state court; or (2) elect to proceed on only the exhausted claims described
above. If Shannon elects option (1) and seeks to dismiss this action in its
entirety so that he may exhaust his claims in the state court, he may notify
the Court of that decision by letter. The Court warns him that any laterfiled habeas petition may be considered untimely under the applicable
one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). If Shannon elects
option (2) and wishes to dismiss his unexhausted claims and proceed only
on his exhausted claims, then he should: (a) file an amended petition
which does not include the unexhausted claims; and (b) file a separate
letter telling the Court that he wishes to proceed only on his exhausted
claims. Shannon is further warned that if he proceeds only on the
exhausted claims, he may not be able to proceed on his other claims in a
second or successive petition. See id. § 2244(b)(2). Whichever course of
action Shannon elects to take, the Court will require him to file his
amended petition, motion, or letter as described herein within thirty (30)
days of the entry of this Order.
IT IS ORDERED that, within thirty (30) days of the entry of this
Order, Petitioner shall: (1) file a letter seeking dismissal of this action in its
entirety while he exhausts his claims in state court; or (2) file a letter
indicating that he wishes to proceed only on his exhausted claims and file
an amended petition that does not include the unexhausted claims.
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Dated at Milwaukee, Wisconsin, this 6th day of December, 2017.
BY THE COURT:
U.S. District Judge
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