Patterson v. Foster

Filing 25

ORDER signed by Judge J P Stadtmueller on 2/22/2021. 21 Petitioner's Motion to Reopen Case and for Leave to File Amended Petition for Writ of Habeas Corpus is GRANTED; 15 Petitioner's Amended Petition to be the OPERATIVE Petition. 16 Petitioner's Motion to Vacate Consent to Magistrate Judge and 18 Petitioner's Motion to Vacate Stay and Abeyance are DENIED as moot. Copy of 15 Petitioner's Amended Petition and this Order to be electronically SENT to Wiscon sin DOJ for service on Respondent; DOJ to NOTIFY Court within 21 days if it will not accept service for Respondent. Within 30 days, Respondent to file motion to dismiss or answer Amended Petition. IF RESPONDENT FILES ANSWER, briefing to proceed as fo llows: Petitioner's brief in support of his Amended Petition due within 60 days of filing of Respondent's answer; Respondent's opposition brief due within 60 days of service of Petitioner's brief or 120 days of this Order if Petit ioner does not file a brief; Petitioner's reply due within 30 days of filing of Respondent's brief. IF RESPONDENT FILES MOTION, briefing to proceed as follows: Petitioner's brief in opposition due within 30 days of filing of Respondent's motion; Respondent's reply due within 15 days of filing of Petitioner's brief. Civil L.R. 7(f) governs page limitations. See Order. (cc: all counsel, via mail to Brian Patterson at Fox Lake Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRIAN PATTERSON,
Petitioner,
v.

Case No. 16-CV-745-JPS-JPS

MICHAEL MEISNER,

ORDER

Respondent.
Following trial in Milwaukee County Circuit Court, a jury convicted
Brian Patterson (“Petitioner”) of first-degree reckless homicide.1 (Docket
#15 at 2, #15-1 at 41). Petitioner filed a direct appeal of his conviction with
the Wisconsin Court of Appeals and then sought review with the state
Supreme Court. (Docket #15 at 3–4, Docket #15-1 at 33–40); State v. Patterson,
855 N.W.2d 491 (Table), 2014 WL 3582732 (Wis. Ct. App. July 22, 2014),
review denied by 857 N.W.2d 617 (Table) (Wis. 2014). On June 22, 2015, the
United States Supreme Court denied Petitioner’s petition for a writ of
certiorari. See Patterson v. Wisconsin, 576 U.S. 1040 (2015) (mem.).
In June 2016, Petitioner filed both a petition pursuant to
28 U.S.C. § 2254 and a motion requesting that the Court stay his petition
and hold it in abeyance while he exhausted his state court remedies.
(Docket #1, #3). Magistrate Judge David E. Jones granted Petitioner’s
motion to stay and instructed Petitioner to return to federal court to pursue
his habeas petition “within 30 days of the full exhaustion of his claims in

See State v. Patterson, 2010CF000599 (Milwaukee Cnty. Cir. Ct.) available at
https://wcca.wicourts.gov (last visited Feb. 10, 2021).
1

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state court.” (Docket #9 at 3). In September 2019, the magistrate
administratively closed Petitioner’s case and directed Petitioner to ask the
Court to lift the stay and re-open his case once Petitioner’s state court
litigation was complete. (Docket #12).
Now before the Court is Petitioner’s motion to vacate the stay and
abeyance, (Docket #18), and a motion to both reopen Petitioner’s case and
for leave to file an amended petition. (Docket #21).2 The Court will grant
Petitioner’s motion to reopen the proceedings and motion for leave to file
an amended petition for a writ of habeas corpus. (Docket #21). Petitioner’s
proposed amended petition, (Docket #15), shall be the operative petition in
this case, and the Court will screen the same.3 The Court will deny as moot
Petitioner’s motion to vacate the stay and abeyance. (Docket #18).
Under Rule 4 of the Rules Governing Section 2254 Cases, district
courts may conduct an initial screening of habeas corpus petitions. Further,
they can summarily dismiss a petition where “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.” Rule 4, Rules Governing § 2254 in the
United States District Courts. This rule also provides the district court with
the power to dismiss both those petitions that do not state a claim upon
In July 2020, Petitioner filed a motion to vacate consent to the magistrate
judge in light of Magistrate Judge Jones’s departure from the Court. (Docket #16).
After this case was reassigned to Magistrate Judge Stephen C. Dries, Petitioner did
not consent to magistrate jurisdiction and his case was reassigned to this branch
of the Court. (See Docket #19). Therefore, the Court will deny as moot Petitioner’s
motion to vacate consent to the magistrate judge.
2

Petitioner’s September 18, 2020 correspondence, (Docket #21-1), makes
clear that Petitioner seeks leave to file the proposed amended petition he already
filed on July 17, 2020, (Docket #15). (See Docket #21-1) (“I have not and cannot
attach a copy of the amended petition because I previously filed the only copy in
July of this year.”).
3

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which relief may be granted and those petitions that are factually frivolous.
See Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993). Pursuant to 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.
Typically, the Court first considers the timeliness of the petition, to
ensure that a state prisoner, who is in custody, files his petition no later than
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 § 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). Although the magistrate did not
address this issue, Petitioner timely filed his petition in June 2016.4 Further,
the Court finds that Petitioner has complied with the magistrate’s order that
Petitioner return to federal court to pursue his habeas petition within 30
days of full exhaustion of his claims at the state level. On June 16, 2020, the
Supreme Court of Wisconsin issued an order denying Petitioner’s petition
for review. (Docket #15-1 at 14).5 Petitioner declared that he mailed his
amended petition on July 15, 2020. (See Docket #15 at 13).

Petitioner timely filed his habeas corpus petition on June 16, 2016, which
was within one year of the United States Supreme Court’s denial of certiorari on
June 22, 2015.
4

See also State v. Patterson, No. 2016AP383, (Wis. Ct. App.) available at
https://wscca.wicourts.gov/caseSearch.xsl (last visited Feb. 11, 2021).
5

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Next, the Court analyzes whether Petitioner fully exhausted his state
court remedies. A district court may not address claims raised in a 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. McCaughtry, 238 F.3d 908, 912 (7th Cir.
2001). A petitioner exhausts his 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 to that court again. Humphrey v. Cady,
405 U.S. 504, 516 n.18 (1972).
First, the Court attempts to parse Petitioner’s claims to determine
whether Petitioner has satisfied the exhaustion requirement. Petitioner’s
first, second, and third grounds for relief turn on Petitioner’s being
acquitted of both First-Degree Intentional Homicide, Wis. Stat. Ann. §
940.01 (2010), and Second-Degree Intentional Homicide, Wis. Stat. Ann. §
940.05 (2010), but being convicted of First-Degree Reckless Homicide, Wis.
Stat. Ann. § 940.02 (2010). Specifically, he argues that because he was
acquitted of intentional homicide, there was insufficient evidence to convict
him of reckless homicide, in violation of his due process rights. He also
claims that the trial court violated his due process rights by narrowly
applying § 940.05 and broadening § 940.02. Additionally, he alleges that by
treating § 940.05 and § 940.02 “disjunctively” the trial court violated his due

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process rights and right against Double Jeopardy.6 Further, Petitioner
believes that the State failed to negate Petitioner’s “perfect self-defense”
beyond a reasonable doubt, in violation of his due process rights. He also
alleges that he was denied due process, a jury trial, and a unanimous verdict
because the self-defense elements of reckless homicide were not presented
to a jury.
According to his fourth ground for relief, Petitioner argues that he
was denied due process and a jury trial because the trial court used jury
instructions that omitted the reasonable-doubt standard and failed to
include reference to the State’s burden to disprove self-defense beyond a
reasonable doubt. (Id. at 6). Next, Petitioner argues that he was denied the
right to represent himself and that the trial court applied an incorrect
standard when evaluating whether Petitioner could represent himself. (Id.
at 6–7). He also alleges that the trial court “manufactured facts in an order
indicating that [Petitioner] requested court-appointed counsel because he
was indigent,” and that such facts were false because the judge was biased
against Petitioner. Thus, the trial court first denied Petitioner the right to
represent himself and then denied him the counsel of his choice.
In his sixth ground for relief, Petitioner argues that he was
constructively denied counsel and due process when the trial court added
the three elements of § 940.02 at the close of evidence. Thus, his counsel was
unprepared and unable to provide a meaningful defense, (i.e., this last-

The Court is skeptical that, notwithstanding Petitioner’s references to
“due process” and “Double Jeopardy,” Petitioner may be “impermissibly
attempting to use a petition for writ of habeas corpus to press his preferred
interpretation” of Wisconsin law. Curtis v. Montgomery, 552 F.3d 578, 582 (7th Cir.
2009). If such is Petitioner’s aim, the Court cautions him that it may not review
state court interpretations of state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991).
6

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minute addition rendered his counsel ineffective). Lastly, in his seventh and
eighth grounds for relief, Petitioner points to multiple instances where he
believes his attorneys, at both the trial and appellate level, were ineffective.
(See id. at 8–13).
Petitioner exhausted all of the aforementioned claims. He presented
them in a post-conviction motion before the Milwaukee County Circuit
Court, (see Docket #1-2), which subsequently denied him relief. (Docket #151 at 22–24). On August 28, 2019, the Wisconsin Court of Appeals summarily
affirmed the circuit court’s denial, (see id. at 15–21), and on June 16, 2020,
the Supreme Court of Wisconsin denied review. (Id. at 14).
The Court will now analyze whether Petitioner has procedurally
defaulted on any of his claims. “A habeas petitioner who has exhausted his
state court remedies without properly asserting his federal claim at each
level of state court review has procedurally defaulted that claim.” Lewis v.
Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). Functionally, procedural default
arises when the petitioner either (1) failed to present his claim to the state
courts, and it is clear that those courts would now hold the claim
procedurally barred, or (2) presented his claim to the state courts, but the
state court dismissed the claim on an independent and adequate state
procedural ground. Perruquet, 390 F.3d at 514; Moore v. Bryant, 295 F.3d 771,
774 (7th Cir. 2002); Chambers v. McCaughtry, 264 F.3d 732, 737–38 (7th Cir.
2001). Because Petitioner presented his federal constitutional claims to the
Wisconsin trial and appellate courts and all courts considered them, the
Court finds that he has not defaulted such claims.
The Court concludes its Rule 4 review by screening the amended
petition for patently frivolous claims. Ray, 700 F.3d 996 n.1. Although
difficult to parse, the Court cannot say that the Petitioner’s grounds for
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relief are patently frivolous at this juncture. Therefore, the Court will order
briefing on the amended petition in accordance with the schedule outlined
below.
Accordingly,
IT IS ORDERED that Petitioner’s motion for leave to reopen the
proceedings and to file an amended petition for a writ of habeas corpus
(Docket #21) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the Petitioner’s motion to vacate
the stay and abeyance (Docket #18) and motion to vacate consent to the
magistrate judge (Docket #16) be and the same are hereby DENIED as
moot; and
IT IS FURTHER ORDERED that the parties shall proceed in
accordance with the following schedule:
1.

Within 30 days of entry of this order, the respondent shall file

either an appropriate motion seeking dismissal of this action or answer the
amended petition, complying with Rule 5 of the Rules Governing § 2254
Cases, and showing cause, if any, why the writ should not issue.
2.

If the respondent files an answer, then the parties should

abide by the following briefing schedule:
a.

The petitioner shall have 60 days after the filing of the
respondent’s answer within which to file a brief in support of
his amended petition, providing reasons why the writ of
habeas corpus should be issued. The petitioner is reminded
that, in accordance with 28 U.S.C. § 2248, unless he disputes
allegations made by the respondent in his answer or motion
to dismiss, those allegations “shall be accepted as true except

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to the extent that the judge finds from the evidence that they
are not true.”
b.

The respondent shall file an opposition brief, with reasons
why the writ of habeas corpus should not be issued, within 60
days of service of petitioner’s brief, or within 120 days from
the date of this order if no brief is filed by the petitioner.

c.

The petitioner may then file a reply brief, if he wishes to do
so, within 30 days after the respondent has filed a response
brief.

3. If the respondent files a motion in lieu of an answer, then the
parties should abide by the following briefing schedule:
a.

The petitioner shall have 30 days following the filing of the
respondent’s dispositive motion and accompanying brief
within which to file a brief in opposition to that motion.

b.

The respondent shall have 15 days following the filing of the
petitioner’s opposition brief within which to file a reply brief,
if any.

Pursuant to Civil L.R. 7(f), the following page limitations apply:
briefs in support of or in opposition to the habeas petition or a dispositive
motion filed by the respondent must not exceed thirty pages and reply
briefs must not exceed fifteen pages, not counting any caption, cover page,
table of contents, table of authorities, and/or signature block.
Pursuant to Rule 4 of the Rules Governing § 2254 Cases, as well as a
Memorandum of Understanding entered into between the Wisconsin
Department of Justice and the U.S. District Clerk of Court for the Eastern
District of Wisconsin, a copy of the amended petition and this Order have
been sent via a Notice of Electronic Filing (“NEF”) to the State of Wisconsin
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respondent through the Attorney General for the State of Wisconsin
through the Criminal Appeals Unit Director and lead secretary. The
Department of Justice will inform the Court within twenty-one days from
the date of the NEF whether the Department will not accept service of
process on behalf of the respondent, the reason for not accepting service for
the respondent, and the last known address of the respondent. The
Department of Justice will provide the pleadings to the respondent on
whose behalf it has agreed to accept service of process.
Dated at Milwaukee, Wisconsin, this 22nd day of February, 2021.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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