Wold v. Foster

Filing 21

ORDER signed by Chief Judge Pamela Pepper on 4/6/2020. Judgment entered 2/22/2016 (dkt. no. 10) VACATED. Stay LIFTED. Clerk of Court to docket proposed amended complaint at dkt. no. 19-1 as a separate docket entry, this is operative petition. Respond ent to answer or otherwise respond to amended complaint within 60 days. See order for briefing schedule and allowable page lengths. Wisconsin DOJ to inform the court within 21 days whether it will accept service on behalf of respondent (and if not, explain why not and provide last known address of respondent). (cc: all counsel, via mail to Darren Wold at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DARREN WOLD,
Petitioner,
Case No. 15-cv-1040-pp
v.
DYLON RADTKE,1
Respondent.

ORDER VACATING JUDGMENT (DKT. NO. 10), LIFTING STAY, SCREENING
PROPOSED AMENDED PETITION (DKT. NO. 19) AND ORDERING
RESPONDENT TO FILE RESPONSE WITHIN SIXTY (60) DAYS

I.

Background
On August 26, 2015, the petitioner, representing himself, filed a petition

for writ of habeas corpus under 28 U.S.C. §2254, challenging his 2009
conviction in Waukesha County Circuit Court for first-degree intentional
homicide as party to a crime. Dkt. No. 1. Three months later, the court
screened the petition and reviewed its eight grounds for relief: (1) denial of the
petitioner’s Confrontation Clause rights; (2) insufficient evidence to prove the
conviction; (3) ineffective assistance of trial counsel for failure to impeach a

The petitioner now is incarcerated at Green Bay Correctional Institution. See
General Public-Offender Search, WISCONSIN DEP’T OF CORRECTIONS, available at
https://appsdoc.wi.gov_/lop/home.do (last visited Mar. 30, 2020). The warden
of that institution is Dylon Radtke, WISCONSIN DEP’T OF CORRECTIONS, available
at https://doc.wi.gov/Pages/OffenderInformation/AdultInstitutions/
GreenBayCorrectionalInstitution.aspx (last visited Mar. 30, 2020). Under Rule
2(a) of the Rules Governing Section 2254 Cases and Fed. R. Civ. P. 25(d), the
court has updated the caption to reflect the appropriate respondent.
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witness; (4) ineffective assistance of trial counsel for failure to call an
exculpatory witness; (5) ineffective assistance of trial counsel for failing to call
the victim’s best friend as a witness; (6) denial of the petitioner’s right to an
impartial tribunal because the judge was biased; (7) denial of the petitioner’s
due process rights when the court did not grant a change of venue; and (8)
denial of the petitioner’s right to a fair trial with the cumulative nature of these
errors. Dkt. No. 7.
The court’s November 24, 2015 screening order concluded that although
the petitioner had exhausted claims one and two of his federal habeas petition
in the state courts, he had not properly exhausted claims three through eight.
Id. at 6. The court informed the petitioner that because he had filed a “mixed”
petition—a petition containing both exhausted and unexhausted claims—the
court had three options: (1) it could dismiss the unexhausted claims; (2) it
could dismiss the petition altogether; or (3) it could stay the petition while the
petitioner returned to state court to exhaust the unexhausted claims. Id. at 78. The court recounted that the petitioner had filed for federal habeas relief in
August of 2015, just one month after the deadline for him to seek direct review
of his conviction had expired. Because it appeared that the petitioner was not
in danger of running afoul of the statute of limitations under 28 U.S.C.
§2244(d)(1)(A), the court concluded that the petitioner had time to return to
state court to exhaust his previously unexhausted claims. Id. at 8. The court
told the petitioner that he needed to decide whether to ask the court to dismiss

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the entire petition without prejudice or to dismiss just his unexhausted claims
and proceed on his exhausted claims. Id.
On January 6, 2016, the petitioner filed a letter saying that he “would
like to accept the offer to dismiss the petition (habeas corpus) without
prejudice.” Dkt. No. 8. The letter also asked the court to grant an extension on
the deadline for re-filing his habeas corpus petition. Id. On February 22, 2016,
the court granted the petitioner’s motion to dismiss his petition. Dkt. No. 9.
The order denied the petitioner’s motion for an extension of time, explaining
that the petitioner still did not appear to be in danger of letting the statute of
limitations run out. Id. at 3. The court informed the petitioner that under 28
U.S.C. §2244(d)(2), “the statute of limitations will be tolled (in other words, it
will stop running) as soon as the petitioner files his unexhausted claims for
post-conviction relief in the Wisconsin state courts. The one-year ‘limitations
period is tolled during the pendency of a properly filed application for State
post-conviction or other collateral review.’” Id. at 3 (quoting Rhines v. Weber,
544 U.S. 269, 274 (2005) (internal quotations omitted).
The court’s order included one final proviso, stating that “if the petitioner
exhausts his claims in state court, but then circumstances develop that might
prevent the petitioner from timely filing a federal habeas petition, he has the
ability at that time to ask this court for an extension of time in which to file his
federal petition.” Dkt. No. 9 at 3. The court dismissed the petition without
prejudice, dkt. no. 9, and entered judgment the same day, dkt. no. 10.

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Over three months later, on May 31, 2016, the petitioner did exactly
what the court had informed him he could do—he filed a motion for extension
of time to file a petition for writ of habeas corpus. Dkt. No. 11. Although the
petitioner did not have a petition pending in federal court at that time, the
petitioner placed this case number on his letter and the clerk’s office docketed
the letter in this case. The letter requested an additional six months for filing
the federal habeas petition because the petitioner currently was in the process
of exhausting certain claims in state court. Id. The petitioner stated that the
current time limit for filing his federal petition had expired on or about July 15,
2016. Id.
On June 7, 2016, the court issued an order denying the petitioner’s
request for an extension of time. Dkt. No. 13. The order cited a decision from
the Eastern District of Wisconsin, Socha v. Pollard, Case No. 08-cv-994-rtr,
which found that “[t]he complications that resulted from Socha’s request to
extend or suspend (“toll”), the one-year statute of limitations for filing a habeas
petition under §2254 convince this court that granting [this petitioner’s] motion
for an extension of time to file a petition containing his exhausted claims is a
risky proposition.” Id. at 6. Instead, the court decided
the better course of action is to reopen this habeas case and stay
the federal proceedings until the petitioner has exhausted his claims
in state court. That way, the petitioner will not lose his ability to
request habeas relief on his exhausted claims while he waits for
exhaustion of his unexhausted ones.
Dkt. No. 13 at 6-7. The court ordered the clerk’s office to re-open the case and
ordered all proceedings stayed until final resolution of the petitioner’s state
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court claims. Id. at 7. It ordered the petitioner to file a status report every
ninety days and to file a notice with the court when he had exhausted all his
state court claims. Id. The court said that it would then allow the petitioner to
amend his petition to add all his exhausted claims. Id. The court did not,
however, vacate the February 22, 2016 judgment.
The petitioner complied with the court’s order to file status reports. Dkt.
Nos. 14, 16, 17 and 18. On July 18, 2017, the petitioner filed a status report
stating that the Wisconsin Supreme Court had denied his petition for review on
July 11, 2017. Dkt. No. 19. Along with the status report, the petitioner filed his
proposed amended habeas petition. Id. The court has not timely reviewed the
petitioner’s filing, and it apologizes for its untimeliness. The petitioner has done
all that the court has asked of him, and the inordinate delay is solely the
court’s responsibility.
The court will vacate the February 22, 2016 judgment as improvidently
entered under Federal Rule of Civil Procedure Rule 60(b). See Judson Atkinson
Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 385 (7th Cir.
2008) (concluding that “a majority of circuits to have considered the power of a
district court to vacate a judgment under Rule 60(b) have concluded that
district courts have the discretion to grant such relief sua sponte.”). It will lift
the stay and screen the proposed amended petition.
The court must add one additional note. In the portion of its June 7,
2016 order which reviewed the petitioner’s case history, the court remarked
that the petitioner’s filings in state court tolled the statute of limitations only
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for his unexhausted claims. Dkt. No. 13 at 3. It found that the petitioner’s state
court filings did not toll the statute of limitations on his already-exhausted
claims—grounds one and two. Id. at 3. It wrote:
The petitioner does not have to ask this court to extend the statute
of limitations period for him to file a federal habeas petition
containing his unexhausted claims. The one-year clock stopped
ticking as soon as the plaintiff filed for post-conviction relief in state
court on those unexhausted claims. 28 U.S.C. §2244(d)(2)[].
The petitioner also asks, however, that this court give him an
“extension” of time to file a petition containing his exhausted claims.
The one-year statute of limitations clock began ticking on the
exhausted claims, as the court has indicated a couple of times now,
on July 15, 2015, which means that the limitations period expires
on July 15, 2016. As the court writes this order, the expiration date
for the statute of limitations is thirty-eight (38) days from now.
Id. (parenthetical omitted). The court created two separate statutes of
limitations for the petitioner, one which applied to the claims he was thencurrently exhausting in state court and one which applied to the claims he had
already exhausted. The court now recognizes that its June 7, 2016 order rested
on a mistaken interpretation of the statute of limitations governing habeas
cases.
Under 28 U.S.C. §2244(d)(1)(A), the petitioner’s one-year statute of
limitations to file a writ of habeas corpus began on July 15, 2015—ninety days
after the Wisconsin Supreme Court denied his petition for review of his direct
appeal. The clock did not stop when he filed for federal habeas review in
August of 2015. See Duncan v. Walker, 533 U.S. 167, 172 (2001) (no tolling
during pendency of federal habeas action). When the petitioner filed for state
post-conviction relief in January of 2016, the statute of limitations period for
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the petitioner’s habeas petition was tolled (paused), because under 28 U.S.C.
§2244(d)(2), “[t]he time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of limitation under
this subsection.” (emphasis added). The section does not distinguish between
the claims pursued in the state post-conviction action. It speaks of the period
of limitation as a whole. Under 28 U.S.C. §2244(d)(2), as long as the state
postconviction action can be considered a “State post-conviction or other
collateral review with respect to the pertinent judgment or claim” and is
“properly filed,” 28 U.S.C. §2244(d)(2) applies and the clock is tolled. Wall v.
Kholi, 562 U.S. 545, 559 (2011).
When a court calculates the petitioner’s statute of limitations period, it
doesn’t calculate one date for claims that have been exhausted by direct
appellate review and a different date for claims that have been exhausted
through, for example, a motion for new trial under Wis. Stat. §974.06. This
court erred when it said otherwise.
When confronted with this same situation, courts apply the general rule
that “[i]f a mixed federal petition is dismissed on exhaustion grounds and the
petitioner then pursued state collateral review of the unexhausted claims, the
limitations period for the exhausted claims is tolled along with the
unexhausted claims.” §9A:67, Tolling of exhausted claims while pursuing state
collateral review of unexhausted claims, FEDERAL HABEAS MANUAL (citing Martin
v. Jones, 969 F. Supp. 1058, 1062 (M.D. Tenn. 1997); see also Parisi v. Cooper,
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961 F. Supp. 1247, 1249 (N.D. Ill. 1997); Valentine v. Senkowski, 966 F. Supp.
239, 241 (S.D.N.Y. 1997); Parker v. Johnson, 988 F. Supp. 1474, 1476 (N.D.
Ga. 1998) (“construing the statute to toll only those certain claims pending
before a state court would, given the necessarily slow pace of state review,
result in time barring all but the last claims to undergo state review.”); Zahraie
v. McCullik, No. 1:17-cv-10875, 2017 WL 3720460, at *2 (E.D. Mich. Aug. 29,
2017) (“The tolling under [28 U.S.C. §2244(d)(2)] stops the clock with respect to
all of Petitioner’s claims, even those that were already exhausted.”)
This court’s error, however, does not impact the petitioner’s ability to
proceed. The petitioner filed status reports—as ordered—and informed the
court that his state court remedies became exhausted as of July 11, 2017. The
petitioner then promptly filed a proposed amended petition. Given that the
petitioner’s statute of limitations for filing a federal habeas petition would have
been tolled until July 11, 2017 under 28 U.S.C. §2244(d)(2), the petitioner’s
amended petition appears timely. The court now will proceed to its longoverdue screening of the petitioner’s amended petition.
II.

Screening Proposed Amended Petition
A.

Standard

Rule 4 of the Rules Governing §2254 proceedings provides:
If it plainly appears from the face of the petition and any
attached exhibits that the petitioner is not entitled to relief
in the district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner. If the petition is not
dismissed, the judge must order the respondent to file an
answer, motion or other response within a fixed time, or to
take other action the judge may order.
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A court allows a habeas petition to proceed unless it is clear that the
petitioner is not entitled to relief in the district court. At the screening stage,
the court expresses no view as to the merits of any of the petitioner’s claims.
Rather, the court reviews the petition and exhibits to determine whether the
petitioner alleges he is in custody in violation of the “Constitution or laws or
treaties of the United States.” 28 U.S.C. §22554(a). The court also considers
whether the petitioner filed the petition within the limitations period, whether
the petitioner has exhausted his state court remedies and whether the
petitioner has avoided procedural default.
B.

Proposed Amended Petition

The petitioner’s amended petition lists seven grounds for relief. First, he
asserts that his appellate counsel was ineffective for “fail[ure] to raise several
issues.” Dkt. No. 19-1 at 10. The petitioner’s second ground is ineffective
assistance of trial counsel; the petitioner says his trial counsel performed
ineffectively by (1) failing to show that a state’s witness, Justin Welch, had
given multiple inconsistent statements to the police; (2) failing to call a fact
witness who would have undermined the state’s evidence of the petitioner’s
complicity in the murder scheme; and (3) failing to consult with the petitioner
and failing to call the victim’s best friend as a witness. Id. at 14. Third, the
petitioner asserts that the state presented insufficient evidence to convict him.
Id. Fourth, the petitioner asserts that the trial judge’s wife knew the victim,
which caused the trial judge to be biased against him. Id. at 16. Fifth, the
petitioner claims that the trial court should have changed the venue for the
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trial and that the petitioner’s counsel was ineffective for failing to raise this
issue. Id. at 17. Sixth, the petitioner claims that the trial court’s errors, taken
cumulatively, denied him a fair trial. Id. Finally, the petitioner claims that the
trial court erroneously failed to grant a severance in his trial, resulting in a
violation of his Confrontation Clause rights. Id. at 18.
The petitioner has presented claims that are generally cognizable on
habeas review. See Kimbrough v. Neal, 941 F.3d 879, 881 (7th Cir. 2019)
(ineffective assistance of appellate counsel actionable for federal habeas relief);
Lee v. Kink, 922 F.3d 772, 774 (7th Cir. 2019) (recognizing availability of
habeas relief for ineffective assistance of trial counsel); Jackson v. Virginia, 443
U.S. 307 (1979) (sufficiency of the evidence reviewable on habeas); Caperton v.
A.T. Massey Coal Co., Inc., 556 U.S. 868, 876 (2009) (“it is axiomatic that [a]
fair trial in a fair tribunal is a basic requirement of due process.”); Rideau v.
State of La., 373 U.S. 723, 726 (1963) (“it was a denial of due process of law to
refuse the request for a change of venue[.]”); Richardson v. Griffin, 866 F.3d
836, (7th Cir. 2017) (granting writ of habeas corpus for violation of
Confrontation Clause rights at trial).
As discussed above, the petitioner’s petition appears timely. Without the
benefit of examining the entire record of the petitioner’s post-conviction
motions in the Wisconsin state courts, it is premature for the court to make a
definitive determination on whether the petitioner has properly exhausted all
seven of his grounds for federal habeas relief. Further, any failure to exhaust
would result in procedural default—an affirmative defense more appropriately
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raised and argued by the respondent. See Perruquet v. Briley, 390 F.3d 505,
515 (7th Cir. 2004). The court will require the clerk’s office to docket the
proposed amended petition as the operative petition, and will require the
respondent to respond to the proposed amended petition.
III.

CONCLUSION
The court ORDERS that the February 22, 2016 judgment is VACATED.

Dkt. No. 10.
The court LIFTS the stay. Dkt. No. 13.
The court ORDERS that the clerk’s office must separately docket the
proposed amended complaint at Dkt. No. 19-1, and that this pleading is the
operative petition.
The court ORDERS that within sixty days of the date of this order, the
respondent shall answer or otherwise respond to the petition, complying with
Rule 5 of the Rules Governing §2254 Cases, and showing cause, if any, why the
writ should not issue.
The court ORDERS that the parties must comply with the following
schedule for filing briefs on the merits of the petitioner’s claims:
(1) the petitioner has forty-five days after the respondent files the answer
to file a brief in support of his petition;
(2) the respondent has forty-five days after the petitioner files his initial
brief to file a brief in opposition;
(3) the petitioner has thirty days after the respondent files the opposition
brief to file a reply brief, if he chooses to file such a brief.
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If, instead of filing an answer, the respondent files a dispositive motion:
(1) the respondent must include a brief and other relevant materials in
support of the motion;
(2) the petitioner then must file a brief in opposition to that motion
within forty-five days of the date the respondent files the motion;
(3) the respondent has thirty days after the petitioner files his opposition
brief to file a reply brief, if the respondent chooses to file such a brief.
The parties must submit their pleadings in time for the court to receive
them by the stated deadlines.
Under Civil Local Rule 7(f), briefs in support of or in opposition to the
habeas petition and any dispositive motions shall not exceed thirty pages, and
reply briefs may not exceed fifteen pages—not counting any statements of fact,
exhibits and affidavits. The court asks the parties to double-space any typed
documents.
Under the Memorandum of Understanding between the Wisconsin
Department of Justice (DOJ) and the U.S. District Court for the Eastern
District of Wisconsin, the court will notify the DOJ (through the Criminal
Appeals Unit Director and lead secretary) of this order via Notice of Electronic
Filing (NEF). The DOJ will inform the court within twenty-one days of the date
of the NEF whether it will accept service on behalf of the respondent (and, if
not, the reason for not accepting service and the last known address of the

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respondent). The DOJ will provide the pleadings to the respondent on whose
behalf it has agreed to accept service of process.
Dated in Milwaukee, Wisconsin this 6th day of April, 2020.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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