Wold v. Foster

Filing 9

ORDER signed by Judge Pamela Pepper on 2/20/2016 DISMISSING WITHOUT PREJUDICE 1 Petitioner's Habeas Petition. (cc: all counsel; by US Mail to Petitioner)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DARREN WOLD,
Petitioner,
v.

Case No. 15-cv-1040-PP

BRIAN FOSTER, Warden,
Green Bay Correctional Institution,
Respondent.

ORDER DISMISSING WITHOUT PREJUDICE
PETITIONER’S HABEAS PETITION (DKT. NO. 1)

Petitioner Darren Wold, a prisoner incarcerated at the Green Bay
Correctional Institution, filed a petition for a writ of habeas corpus under 28
U.S.C. §2254. Dkt. No. 1. The court screened the petition and concluded that
the petitioner had exhausted two of the claims he raised in his petition—that
the trial court erroneously denied his motion for severance (ground one), and
that his conviction was not supported by sufficient evidence (ground two). Dkt.
No. 7 at 6. The court concluded, however, that the petitioner had not
exhausted his remaining claims—that his trial counsel was ineffective due to
counsel’s alleged failures to show that a co-defendant had given multiple
inconsistent statements to the police, to call certain fact witnesses, and to
consult with the petitioner about strategic choices (grounds three through five);
that the trial judge erroneously failed to recuse himself (ground six); that the
trial court should have granted the petitioner’s motion to change venue and

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that his counsel’s attempt to pursue that issue was ineffective (ground seven);
and his claim that the combined effect of all of the alleged trial errors violated
the petitioner’s due process rights and deprived him of a fair trial (ground
eight). Id.
The court allowed the petitioner to decide whether to abandon his
unexhausted claims and proceed in federal court only on the claims he had
exhausted, or to return to state court to exhaust all the claims he had raised in
his federal habeas petition. Id. at 8. The court warned the petitioner that, if he
decided to give up his unexhausted claims and proceed only on the claims he
already had exhausted, it was unlikely that he would be able to raise the
unexhausted claims in a future federal habeas petition. Id. at 9.
The petitioner has notified the court that he has elected to return to state
court to exhaust his unexhausted claims, so the court will dismiss his petition
without prejudice (meaning that the court is not barring him from filing
another petition in the future). Dkt. No. 8. He also asks the court to extend the
time in which to exhaust his claims in the state court and, if he is
unsuccessful there, to allow him return to this court. The court cannot grant
that request.
First, the petitioner does not appear to be in danger of losing his ability
to seek federal habeas relief on his unexhausted claims due to expiration of the
one-year statute of limitations. As the court explained in its prior order, the
petitioner’s one-year limitations period began to run ninety days after the day
the Wisconsin Supreme Court denied his petition for review. Anderson v.
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Litscher, 281 F.3d 672, 674–675 (7th Cir. 2002) (one-year statute of limitations
does not begin to run under §2244(d)(1)(A) until expiration of 90-day period in
which prisoner could have filed a petition for a writ of certiorari with United
States Supreme Court). The Wisconsin Supreme Court denied the petitioner’s
petition for review on April 16, 2015, which means that the one-year
limitations period began to run on or about July 15, 2015.
As of the date of this order, less than eight months of the one-year
statute of limitations period have elapsed. The statute of limitations will be
tolled (in other words, it will 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.’” Rhines v.
Weber, 544 U.S. 269, 274, 125 S. Ct. 1528 (2005) (quoting §2244(d)(2)).
Given the timeline above, it appears to the court that the petitioner will
have several months of time remaining to seek federal habeas relief if he
promptly files his claims in state court and ultimately is not successful in
obtaining post-conviction relief in the state courts.
Second, 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.
Finally, this federal court cannot order the state court to give the
petitioner more time to file cases there. The two courts are separate; one does
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not have control over the other. If the petitioner needs more time from the state
court, he needs to make that request to the state court.
The court ORDERS that the petitioner’s habeas petition is DISMISSED
WITHOUT PREJUDICE.
Dated in Milwaukee, Wisconsin this 20th day of February, 2016.

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