Brown v. Foster

Filing 82

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 5/28/2019. Petition for writ of habeas corpus DISMISSED without prejudice because it contains both exhausted and unexhausted claims. (cc: all counsel, via mail to Ennis Brown at Wisconsin Secure Program Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ENNIS LEE BROWN,
Petitioner,
v.

Case No. 16-cv-1497-pp

BRIAN FOSTER,
Respondent.

ORDER DISMISSING MIXED PETITION

I.

BACKGROUND
Representing himself, the petitioner filed a petition for writ of habeas

corpus under 28 U.S.C. §2254 in the fall of 2016. Dkt. No. 1. The court
screened the petition, dkt. no. 9, allowed the petitioner to amend his petition,
dkt. no. 25, and issued a lengthy decision on several of the petitioner’s
motions, dkt. no. 59. On February 19, 2019, after full briefing on the petition,
the court issued an order. Dkt. No. 77.
The order explained to the petitioner that he had presented the court
with a “mixed” petition—one containing both exhausted and unexhausted
claims. Dkt. No. 77 at 15. The court told the peititioner that the law did not
allow it to decide mixed petitions for habeas corpus. Id. (citing Rhines v. Weber,
544 U.S. 269, 273 (2005)). It informed the petitioner that the court could either
dismiss his entire petition without prejudice, stay the case while he returned to
state court to exhaust his unexhausted claims or—with the petitioner’s
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permission—proceed on the exhausted claims after dismissing the
unexhausted claims. Id. at 15-17. The court observed that if the petitioner
wanted the court to stay the petition, he needed to show good cause for why he
had failed to exhaust four of his five claims in state court. Id. at 17.
The order noted that the petitioner seemed to believe he had “good
cause” for not presenting all his claims to the Wisconsin Supreme Court; he
had argued that his appellate counsel had provided him with ineffective
assistance of counsel on appeal. Id. at 18. “While he doesn’t say it, [the
petitioner] implies that [his appellate lawyer] did not raise all the issues the
petitioner wanted him to raise, and that [the appellate lawyer] provided
ineffective assistance with the issues he did raise.” Id. at 18 (emphasis in
original).
The court informed the petitioner that “‘a claim of ineffectiveness must
itself have been fairly presented to the state courts before it can establish cause
for a procedural default of another claim.’” Id. (quoting Lewis v. Sternes, 390
F.3d 1019, 1026 (7th Cir. 2004)). It told the petitioner that Wisconsin had a
procedure for challenging the effectiveness of appellate counsel, through a
petition under State v. Knight, 168 Wis.2d 509 (Wis. 1992) and explained that
a defendant could file a Knight petition at any time. Id. at 19. The court
indicated that it couldn’t tell whether the petitioner had filed a Knight petition
in the Wisconsin court of appeals, stating
[p]erhaps the petitioner has filed a Knight petition in state
court, and this court somehow missed it. Perhaps he has chosen not
to file a Knight petition for some reason; that would be his right.
Perhaps he would like the opportunity to file a Knight petition, and
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wants this court to delay its ruling until he can do that. Before the
court dismisses the petition for procedural default, as the
respondent has asked it to do, the court will give the petitioner the
opportunity to provide the court with proof that he has filed a Knight
petition or tell the court that he has chosen not to do so. If the
petitioner has filed a Knight petition and the state courts have ruled
on it, he should provide this court with copies of the state court’s
decisions. If he has not filed a Knight petition but wants to do so, he
should file that petition by the deadline the court sets below. If the
petitioner notifies the court that he has chosen not to file a Knight
petition, the court will issue its ruling dismissing the petition on the
ground of procedural default.
Id. at 20.
II.

ANALYSIS
On March 4, 2019, the petitioner filed a response to the court’s order.

Dkt. No. 80. He tells this court that he “had given the ‘highest’ state court the
opportunity to hear his claims.” Id. at 1. The petitioner claims that around
August of 2015, he tried to file his case with the Wisconsin Supreme Court,
which, he says, sent the case to the Wisconsin Court of Appeals in Case No.
2015-AP-2114W. Id. The petitioner says that he was indigent and could not
afford to pay the $195 filing fee to proceed in the appellate court. Id. He says
that he “attempted to apply for indigent status” but that the Court of Appeals
dismissed the case. Id. The petitioner attached to his response an October 21,
2015 letter from the Wisconsin Supreme Court titled “Acknowledgement of
Filing of Writ/Petition.” Dkt. No. 80-1 at 1. He also attached an October 21,
2015 order from the Wisconsin Supreme Court stating that it had not received
a filing fee for the petition. Dkt. No. 80-1 at 2. That order told the petitioner
that unless he could show good cause for waiving the $195 filing fee, the court

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would dismiss his petition. Id. Both the letter and the order bear case number
2015-AP-2114W.
Having provided the court with these documents, the petitioner says, “I
would like to proceed and await your decision on my Writ of Habeas Corpus, 28
U.S.C. §2254.” Id. Later, the petitioner reiterates that “he will not [] have plans
to return to the State of Wisconsin Court System, at this stage.” Id. at 3.
The court examined the public record for the appellate court case. See
Ennis Lee Brown v. William Pollard, Case No. 2015AL002114-W, available at:
https://wscca.wicourts.gov/index.xsl (last visited May 9, 2019). The “case
history” tab reveals that the petitioner filed a “Petition for Writ of Habeas
Corpus” on October 21, 2015 and that the Supreme Court sent the petitioner
forms that he could complete to demonstrate his indigency. Id. According to the
record, the petitioner did not return those forms (at least, the docket doesn’t
show that the Court received them), so on December 14, 2015, the Wisconsin
Supreme Court issued a miscellaneous order dismissing the case. Id. The court
has no idea whether this “Petition for Writ of Habeas Corpus” was a Knight
petition or some other petition. It doesn’t matter, however; even though this
court has given him a chance to do so, the petitioner has not explained to this
court what issues he raised in the petition to the Wisconsin Supreme Court
raised. Nor has he explained why he did not send in the paperwork to prove
that he was indigent, so that the Supreme Court could consider whether to
waive the $195 filing fee. The petitioner has demonstrated only that he filed
something titled “Petition for Writ of Habeas Corpus” in the Wisconsin Supreme
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Court on October 21, 2015 and that the court dismissed that petition two
months later for failing to pay the filing fee. Id.
The court concludes that the petitioner never has filed a petition under
State v. Knight, and thus never has given a state court the opportunity to
review his argument that his appellate counsel was ineffective. The petitioner
has informed this court that he does not intend to return to the state court,
which means he does not intend to give the state court an opportunity to
review his ineffective-assistance-of-appellate-counsel argument. Because the
petitioner isn’t trying to exhaust that unexhausted claim, he cannot show good
cause for the court to stay the mixed petition until he exhausts that claim. The
petitioner has not asked the court to dismiss his unexhausted claim and
proceed on his exhausted claim. He has said only that he “would like to
proceed and await [the court’s] decision on my Writ of Habeas Corpus 28
U.S.C. 2254.” Dkt. No. 80 at 1. Because the Seventh Circuit has prohibited
district courts from ruling on mixed petitions, the court has only one option: to
dismiss the mixed petition. Several of the petitioner’s grounds for relief contain
claims that are procedurally defaulted due to his failure to present them to the
highest State court, and the court warned the petitioner that if he chose not to
file a Knight petition, it would dismiss the petition on the ground of procedural
default. See Dkt. No. 77 at 20 (“If the petitioner notifies the court that he has
chosen not to file a Knight petition, the court will issue its ruling dismissing
the petition on the ground of procedural default.”) That is what the court will
do.
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II.

CONCLUSION
The court ORDERS that the petitioner’s mixed petition for writ of habeas

corpus is DISMISSED WITHOUT PREJUDICE.
Dated in Milwaukee, Wisconsin this 28th day of May, 2019.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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