Lewis v. Guokas et al

Filing 11

ORDER signed by Judge Lynn Adelman on 11/3/16 that within 60 days of the date of this order respondent either answer the petition or file a dispositive motion. Further ordering that petitioners second motion to proceed without prepayment of the filing fee 10 is DENIED as MOOT. Further ordering the parties to abide by the schedule regarding the filing of briefs on the merits of petitioners claims set forth herein. (cc: all counsel, via USPS to petitioner) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TIMOTHY J. LEWIS,
Petitioner,
v.

Case No. 16-CV-1288

RONALD MALONE, Warden,
Milwaukee Secure Detention Facility,
Respondent.

ORDER
Timothy Lewis is a Wisconsin prisoner currently in custody at the Milwaukee
Secure Detention Facility. On September 26, 2016, he filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging the revocation of his
extended supervision and the ordered period of reconfinement. He also filed a motion
for leave to proceed without prepayment of the filing fee. On October 14, due to
deficiencies in his petition, I dismissed his petition without prejudice and with leave to
amend. I denied his motion to proceed without prepayment of the filing fee as moot
because he had already paid the filing fee. On October 26, Lewis filed an amended
petition and another motion to proceed without prepayment of the filing fee. Again,
Lewis has already paid the filing fee, so I will deny his motion as moot.
Pursuant to Rule 4 of the Rules Governing § 2254 Cases, I must promptly
examine Lewis’s amended petition:
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.

Having reviewed Lewis’s amended petition, I find that it does not plainly appear that the
petitioner is not entitled to relief in the district court.
It seems as though Lewis has not exhausted his available state remedies or he
has procedurally defaulted on the claims that he raises in his petition, but dismissal on
those grounds before the respondent has filed a response to the petition would be
inappropriate. Failure to exhaust state remedies and procedural default are affirmative
defenses that the state can waive and that are subject to certain exceptions. See Rule
5(b) of the Rules Governing § 2254 Cases; see also, e.g., Day v. McDonough, 547 U.S.
198, 209 (2006). Until the respondent appears and asserts those defenses and the
petitioner is given an opportunity to show why they do not bar relief in this case, I cannot
determine whether dismissal on those grounds would be appropriate. Accordingly,
respondent will be ordered to file a response to the petition.
THEREFORE, IT IS ORDERED that within 60 days of the date of this order
respondent either answer the petition, complying with Rule 5 of the Rules Governing
§ 2254 Cases, or file a dispositive motion.
IT IS FURTHER ORDERED that petitioner’s second motion to proceed without
prepayment of the filing fee (ECF No. 10) is DENIED as MOOT.
IT IS FURTHER ORDERED that the parties shall abide by the following schedule
regarding the filing of briefs on the merits of petitioner’s claims: (1) petitioner shall have
45 days following the filing of respondent’s answer within which to file his brief in
support of his petition; (2) respondent shall have 45 days following the filing of
petitioner’s initial brief within which to file a brief in opposition; and (3) petitioner shall

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have 30 days following the filing of respondent’s opposition brief within which to file a
reply brief, if any.
In the event that respondent files a dispositive motion and supporting brief in lieu
of an answer, this briefing schedule will be suspended and the briefing schedule will be
as follows: (1) petitioner shall have 45 days following the filing of respondent’s
dispositive motion and supporting initial brief within which to file a brief in opposition;
and (2) respondent shall have 30 days following the filing of 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 respondent
must not exceed 30 pages and reply briefs must not exceed 15 pages, not counting any
statements of facts, exhibits, and affidavits.
Petitioner is advised that he must send copies of all future filings with the court to
counsel for respondent, no matter whether in letter, brief, memorandum, or other form.
Pursuant to the Memorandum of Understanding between the Attorney General
and this court, copies of the petition and this order are being sent today to the Attorney
General for the State of Wisconsin for service upon the respondent.
Dated at Milwaukee, Wisconsin, this 3rd day of November, 2016.

s/ Lynn Adelman
__________________________________
LYNN ADELMAN
District Judge

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