Brown v. Foster

Filing 9

ORDER signed by Judge Pamela Pepper on 1/9/2017 SCREENING 1 Petition for Writ of Habeas Corpus filed by Ennis Lee Brown and ORDERING the Respondent to answer or otherwise respond. (cc: all counsel; by US Mail to petitioner)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ENNIS BROWN,

Case No. 16-CV-1497-PP

Petitioner,
v.
BRIAN FOSTER,
Respondent.

ORDER SCREENING §2254 HABEAS CORPUS PETITION (DKT. NO. 1) AND
ORDERING THE RESPONDENT TO ANSWER OR OTHERWISE RESPOND

Ennis Brown, who is proceeding without a lawyer, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. §2254. Dkt. No. 1. He has paid the
$5.00 filing fee. The case now is before the court for screening pursuant to Rule
4 of the Rules Governing §2254 Proceedings.
I.

BACKGROUND
In Milwaukee County Circuit Court, the petitioner was convicted of

multiple sexual-related crimes. Dkt. No. 1 at 2. The petitioner alleges that he
presented the issues raised in his petition to the Wisconsin state courts. Id. at
3, 4, 5. It appears that he received no relief from the Wisconsin trial or
appellate courts, and the petitioner alleges that the Wisconsin Supreme Court
denied his petition for review. Id. at 3. While the Wisconsin courts were
reviewing his appeals, he filed a petition for habeas relief in federal court.
Brown v. Pollard, Case #14-CV-872, Dkt. No. 1. Because his state appeals were
pending at the time he filed the habeas petition, Judge Clevert denied the
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petition without prejudice, indicating that the petitioner could re-file once he’d
exhausted his remedies in state court. Id. at dkt. no. 33. This current petition
is the post-exhaustion petition.1 Dkt. No. 1.
The petitioner alleges that he was convicted and sentenced in violation of
his federal constitutional rights under the Fourth and Sixth Amendments, and
he alleges four grounds for the petition. He alleges that he was arrested without
a warrant, in violation of the Fourth Amendment’s due process protections. Id.
at 8. He alleges that state failed to charge him or bring him before a judicial
officer within forty-eight hours, and denied him a speedy trial. Id. at 12-25. As
part of that ground, he also alleges that he was denied his right to open and
public proceedings. Id. Finally, he alleges that he was denied effective
assistance of counsel under the Sixth Amendment. Id. at 26-31. Finally, he
alleges a “miscarriage of justice,” summarizing the claims in the prior three
grounds.
II.

THE PETITIONER MAY PROCEED ON SOME OF THE CLAIMS IN HIS
PETITION.
The court now will review, or “screen” the petition. Rule 4 of the Rules

Governing §2254 Proceedings states:
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 . . . .
This 2016 petition technically constitutes the first petition. See Slack v.
McDaniel, 529 U.S. 473, 486 (2000) (petition filed after prior petition was
dismissed for failure to exhaust state remedies is not a “successive” petition).
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A court must allow a habeas petition to proceed unless it is clear to the court
that the petitioner is not entitled to relief in the district court.
At the screening stage, the court expresses no view on the merits of any
of the petitioner’s claims. The court reviews the petition only to determine
whether the petitioner has stated claims of a type that are generally cognizable
on habeas review. The petitioner’s Sixth Amendment speedy trial and
ineffective assistance/denial of counsel claims generally are cognizable on
habeas review. The court will allow the petitioner to proceed on those two
claims.
The petitioner’s Fourth Amendment habeas claim regarding unlawful
detention and arrest generally is barred in a federal habeas case. The Supreme
Court held in Stone v. Powell, 428 U.S. 465, 495 (1976) that if a criminal
defendant had a full and fair opportunity to litigate a Fourth Amendment claim
during his criminal trial, a federal court may not grant him habeas relief “on
the ground that evidence obtained in an unconstitutional search or seizure was
introduced at his trial.” It is not clear to the court whether the petitioner tried
to litigate his Fourth Amendment unlawful arrest/detention claim in his state
criminal trial, or whether he had a full and fair opportunity to do so. Therefore,
even though such claims usually are barred on habeas review, the court will, at
this early stage, allow the petitioner to proceed on his Fourth Amendment
claims.

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The court will not, however, allow the petitioner to proceed on his
“miscarriage of justice” claim (the fourth ground he raises). The “miscarriage of
justice” claim is not a substantive constitutional claim that a party can raised
in a habeas petition. Rather, “miscarriage of justice” is a defense that
sometimes may apply when a petitioner has failed to exhaust his remedies on
some other substantive claim. If a petitioner fails to exhaust state court
remedies on a substantive claim, he may be able to overcome that failure if he
can prove that there would be a “miscarriage of justice” if the court failed to
grant the petition. Usually the petitioner has to demonstrate, through evidence,
actual innocence to overcome such a failure. Because “miscarriage of justice” is
not a substantive claim that a petitioner may prosecute, the court will not allow
the petitioner to proceed on his fourth claim.
III.

CONCLUSION
The court ORDERS that the petitioner may proceed on the first three (3)

grounds identified in his petition—his Fourth Amendment unlawful
seizure/detention claim, his Sixth Amendment speedy trial claim, and his Sixth
Amendment ineffective assistance/denial of counsel claim.
The court ORDERS that within sixty (60) 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:
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(1) the petitioner has forty-five (45) days after the respondent files his
answer to file his brief in support of his petition;
(2) the respondent has forty-five (45) days after the petitioner files his
initial brief to file the respondent’s brief in opposition; and
(3) the petitioner has thirty (30) days after the respondent files his
opposition brief to file a reply brief, if the petitioner chooses to file such a brief.
If, instead of filing an answer, the respondent files a dispositive motion,
the respondent must include a brief and other relevant materials in support of
the motion. The petitioner then must file a brief in opposition to that motion
within forty-five (45) days of the date the respondent files the motion. If the
respondent chooses to file a reply brief, he must do so within thirty (30) days
of the date the petitioner files the opposition brief.
Pursuant to Civil Local Rule 7(f), briefs in support of or in opposition to
the habeas petition and any dispositive motions shall not exceed thirty (30)
pages, and reply briefs may not exceed fifteen (15) pages, not counting any
statements of facts, exhibits and affidavits.
Dated in Milwaukee, Wisconsin this 9th day of January, 2017.

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