Brown v. Bruso

Filing 28

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS HEREBY ORDERED that Brown's petition for writ of habeas corpus (Docket # 1 ) is DENIED. Judgment will be entered accordingly (cc: all counsel)(asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIAM D. BROWN,
Petitioner,
v.

Case No. 16-CV-1663

PAUL S. KEMPER,
Respondent.
DECISION AND ORDER DISMISSING PETITION
Petitioner William D. Brown filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 on December 14, 2016. (Habeas Petition, Docket #1.) Brown is currently
serving a twenty-one year sentence following his conviction for felon in possession of a
firearm and first degree recklessly endangering safety. (Id. at 2.) In his petition, Brown raises
three grounds for relief. In ground one, Brown alleges that his rights were violated under
Brady v. Maryland, 373 U.S. 83 (1963) and in grounds two and three, he alleges ineffective
assistance of trial and appellate counsel. (Id. at 6–8.) The respondent filed a motion to
dismiss Brown’s habeas petition on the grounds that because Brown did not take any appeal
challenging his conviction in state court, he failed to exhaust his claims. (Docket # 17.)
Brown subsequently filed a motion acknowledging that he failed to exhaust his federal
constitutional claims and requested that I dismiss his petition without prejudice so that he
can present his constitutional claims to the state court and preserve his right to file a habeas
petition with this court. (Docket # 18.) Although I was reluctant to stay Brown’s petition
and hold it in abeyance given that he did not appear to meet the good cause standard under

Rhines v. Weber, 544 U.S. 269 (2005), given his pro se status, I granted Brown’s request to
stay and hold his habeas petition in abeyance while he exhausted his claims in state court.
(Docket # 23.) Brown was instructed, however, that following the conclusion of his state
court proceedings, Brown must move to reopen this habeas case within thirty days and that
failure to file a motion to reopen within thirty days may constitute cause for this case to
remain closed. (Id.)
In December 2018, the respondent provided an update as to the status of Brown’s
state court proceedings. (Docket # 27.) At that time, the respondent stated that Brown had
filed a number of motions to extend the deadline for filing his brief-in-chief and on
November 13, 2018, the Wisconsin Court of Appeals granted Brown’s most recent motion,
which made his brief-in-chief due by Monday, January 14, 2019. (Id.) Hearing no further
updates from the parties, and having reviewed the Wisconsin Court of Appeals’ online case
access system, see Wisconsin Court System, Supreme Court and Court of Appeals Access,
http://wscca.wicourts. gov/ (enter “2017AP002247” in the “Appeal Number” field and
select “Case History” button) (last visited Apr. 7, 2020)), it appears that after requesting at
least four further extensions of time, Brown voluntarily dismissed his appeal in December
2019.
Given both Brown’s failure to alert this Court pursuant to the August 2017 order of
the conclusion of his state court proceedings, and given Brown’s voluntary dismissal of his
state court appeal, it appears that Brown does not wish to pursue his petition for habeas
corpus in federal court. For these reasons, Brown’s petition for a writ of habeas corpus is
denied and the case is dismissed. Judgment will be entered accordingly.
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ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that Brown’s petition for writ
of habeas corpus (Docket # 1) is DENIED. Judgment will be entered accordingly.

Dated at Milwaukee, Wisconsin this 8th day of April, 2020.

BY THE COURT:
s/Nancy Joseph ____________
NANCY JOSEPH
United States Magistrate Judge

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