Shannon v. Pollard

Filing 39

ORDER signed by Judge J.P. Stadtmueller on 6/14/2018 DISMISSING CASE without prejudice for Petitioner's failure to prosecute. (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,
Petitioner,

Case No. 14-CV-980-JPS

v.
WILLIAM J. POLLARD,
Respondent.

ORDER

This case is nearly four years old. It lived most of its life under a
stay and abeyance, granted at Petitioner’s request so that he could exhaust
his habeas claims in state court. He was only partially successful in that
endeavor. Despite being afforded years to seek exhaustion of all of his
claims, his petition nevertheless contained some unexhausted claims. The
Court identified the exhausted and unexhausted claims in a screening
order issued on December 6, 2017. (Docket #27).1
In that order, the Court afforded Petitioner thirty days to elect
either to end this case and pursue his unexhausted claims in state court or
proceed only on his fully exhausted claims. He ignored the Court’s
directive completely, so the Court gave him a final warning and seven
additional days to comply. (Docket #28). He obeyed, asking that he be
allowed to proceed only on his exhausted claims. (Docket #30). The Court

Petitioner opposed ending the stay and abeyance, as he believed it
should continue during the pendency of his co-defendant and brother’s state
post-conviction proceedings. (Docket #25). Stay and abeyance does not exist for
such purposes, however, so that request had to be denied. Id. at 2–3.
1

obliged his request and ordered that the parties brief the merits of his
habeas claims.
In accordance with that briefing schedule, counsel for Respondent
answered the petition on February 15, 2018. (Docket #34). The next step
was for Petitioner to submit a brief in support of his claims within sixty
days of the answer. (Docket #30 at 3). Petitioner sought and was granted a
30-day extension of that deadline after he complained of limited access to
the institution law library and his jailhouse lawyer. (Docket #36). That
gave him a total of ninety days to file his brief in support, or until May 16,
2018. The Court warned that “no further extensions of that deadline will
be considered.” Id. at 1.
Despite that warning, and a day after the May 16 deadline passed,
Petitioner requested another 30-day extension to file his brief in support of
his petition, again citing limited access to the law library and his jailhouse
lawyer. (Docket #37). The Court observed that while these were good
reasons for an extension of time, “the Court has already considered those
very reasons in its prior order and found that a single 30-day extension
was sufficient to accommodate them.” (Docket #38 at 1). “Moreover,”
noted the Court, “Petitioner has flouted the Court’s warning that no
further extensions would be allowed.” Id.
Nevertheless, the Court generously granted Petitioner one final 14day extension of time, until May 30, 2018, to submit his brief. Id. at 2. It
made crystal clear that “[n]o additional extensions will be entertained for
any reason, and failure to timely file a brief in support of the petition will
result in dismissal of the petition for failure to prosecute.” Id. (citing Civ.
L. R. 41(b)).

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The May 30 deadline has long since passed and the Court has
received no brief from Petitioner, nor any other communication of any
type. He has not heeded the Court’s warning that failure to file a brief in
support of his petition within the prescribed period would result in
dismissal of this action. As the Court has detailed above, this is consistent
with

Petitioner’s

long-standing

practice

of

flouting

the

Court’s

instructions and the deadlines it set. As a result, the Court will dismiss
this action without prejudice for his failure to prosecute the same. See Civ.
L. R. 41(c); Fischer v. Cingular Wireless, LLC, 446 F.3d 663, 665 (7th Cir.
2006).
This result is unfortunate, as the Court and Petitioner have invested
substantial time and energy in pursuing the resolution of his habeas
petition. Yet the Court’s directives are not mere suggestions and are not to
be lightly ignored. Petitioner—and his contumacious disregard for his
obligations as a litigant—alone are to blame for today’s result. From his
lack of diligence in pursuing exhaustion of his claims during the yearslong stay and abeyance, to his failure to communicate with the Court, to
his near-constant requests for extensions of already lengthy or previously
extended deadlines, Petitioner has demonstrated that he does not wish to
apply himself to this matter with the diligence required of civil litigants.
The Court’s docket is too overburdened with eager and industrious
litigants to give Petitioner any more second chances. This matter will be
dismissed, despite the fact that it will likely be the practical end of
Petitioner’s ability to seek federal habeas review. See Borzych v. Bertrand,
974 F. Supp. 1220, 1224 (E.D. Wis. 1997).

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Accordingly,
IT IS ORDERED that this action be and the same is hereby
DISMISSED without prejudice for Petitioner’s failure to prosecute.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 14th day of June, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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