Brito v. Malone

Filing 15

ORDER signed by Judge J.P. Stadtmueller on 9/28/2017: DENYING as moot 14 Petitioner's Motion for Extension of Time and DENYING 13 Petitioner's Motion for Stay and Abeyance. Within 14 days, Petitioner to file either a notice indicati ng that he wishes to proceed on his existing, exhausted claim only or a voluntary dismissal of his petition altogether; failure to timely do so will result in dismissal without further notice. See Order. (cc: all counsel, via mail to Gabriel Brito at Milwaukee Secure Detention Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GABRIEL BRITO,
Petitioner,

v.

Case No. 17-CV-135-JPS-JPS

RONALD MALONE,
Respondent.

ORDER

On February 14, 2017, the Court screened the petition in this matter.
(Docket #12). It determined that while the first ground for relief had been
exhausted in state court, the remaining three had not. Id. at 3-4. The Court
gave Petitioner various options to address this problem, including filing a
motion to stay this action while he litigated those unexhausted claims in
state court. Id. at 4. Petitioner filed such a motion on March 16, 2017. (Docket
#13).1
A stay and abeyance is appropriate when “the petitioner had good
cause for his failure to exhaust all claims and . . . the unexhausted claims
have some possible merit.” Dolis v. Chambers, 454 F.3d 721, 724 (7th Cir.
2006) (citing Rhines v. Weber, 544 U.S. 269, 277–78 (2005)); Arrieta v. Battaglia,
461 F.3d 861, 866–67 (7th Cir. 2006). “[W]henever good cause is shown and
the claims are not plainly meritless, stay and abeyance is the preferred
course of action.” Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008).
Requiring a showing of good cause before entertaining a stay is critical

Petitioner also filed a motion for an extension of time to submit an
amended petition. (Docket #14). In this Order, the Court will provide instructions
on how Petitioner may proceed in this matter without the need for an amended
petition. The motion will be denied as moot.
1

because staying a federal habeas petition: (1) frustrates the Antiterrorism
and Effective Death Penalty Act of 1996’s (“AEDPA”) “objective of
encouraging finality of state court judgments by allowing a petitioner to
delay the resolution of the federal proceedings”; and (2) “undermines
AEDPA’s goal of streamlining federal habeas proceedings by decreasing a
petitioner’s incentive to exhaust all his claims.” Rhines, 544 U.S. at 270. It is
for this reason that the Supreme Court has emphasized that a “stay and
abeyance should be available only in limited circumstances.” Id.
Petitioner has failed to show good cause sufficient to invoke a right
to a stay and abeyance of this matter. He offers a different source of “good
cause” as to each unexhausted ground for relief. Ground Two (the first
unexhausted ground) asserts “ineffective assistance of counsel, alleging
that counsel failed to adequately explain the state’s plea offer[.]” (Docket
#12 at 4). Petitioner states that “Claim Two was litigated until the Counsel
told me at the hearing on October 2, 2014 in Judge Rothstein Court was
going to be waived.” (Docket #13 at 2). This sentence makes no sense on its
own, but the Court gathers that Petitioner’s counsel allegedly declined to
raise the claim in that hearing on Petitioner’s post-conviction motion.
Petitioner does not further explain his discussion with counsel or the events
of the hearing. See id. at 2-3. Even if his story is true, Petitioner offers no
reason why he could not have filed his own post-conviction motion raising
Ground Two prior to instituting this federal lawsuit.
Ground Three claims a “violation of the Fourth Amendment,
alleging that police coached the victim to provide a more damning story[.]”
(Docket #12 at 4). Petitioner says that he chose to utilize the services of a law
school assistance program to help him in preparing his post-conviction
motion. (Docket #13 at 3-4). Petitioner blames the students for failing to
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raise Ground Three. Id. at 4. The Court is unconvinced. As with Ground
Two, if Petitioner did not agree with the preparation of his post-conviction
motion, he could have declined their representation and completed the task
himself, long before filing this habeas action. Petitioner complains that this
would have been difficult given his lack of legal training, but that is not an
excuse sufficient to warrant a stay and abeyance. See Harris v. McAdory, 334
F.3d 665, 668 (7th Cir. 2003); Smith v. McKee, 598 F.3d 374, 385 (7th Cir. 2010).
Finally, Ground Four challenges the “sufficiency of the evidence,
alleging that the state failed to prove that sexual contact was nonconsensual.” (Docket #12 at 4). Here again, Petitioner argues that his law
student assistants decided not to include the claim in his post-conviction
motion; the Court rejects this excuse for the same reasons stated above.
(Docket #13 at 5). Petitioner further states that he had limited access to legal
material and he spent much of his time in prison in segregation. Id. at 5 &
n.4. First, these are not atypical hardships for prisoners and do little to
excuse Petitioner’s failure to exhaust. Tucker, 538 F.3d at 734–35. Second, as
to the segregation issue, Petitioner fails to demonstrate that this restrictive
confinement was imposed for reasons outside his control. Good cause
cannot be premised on segregation status which was a result of Petitioner’s
own rule-breaking behavior. The instant motion was Petitioner’s
opportunity to explain that good cause existed for his failure to exhaust,
and he has not done so as to any of the unexhausted claims.
The Court appreciates that if the instant petition is dismissed, it
“‘effectively end[s] any chance at federal habeas review.’” Id. at 735
(quoting Dolis, 454 F.3d at 725). However, the petition need not end here if
Petitioner desires to proceed on his existing claim. In light of the Court’s
decision to deny his request for a stay and abeyance, Petitioner must decide
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between the following two options within the next fourteen (14) days. First,
Petitioner may proceed solely on the basis of his existing, properly
exhausted claim. However, if he elects this course of action, the Court will
consider only the merits of that claim, which would restrict future federal
habeas corpus review of Petitioner’s unexhausted claims because those
claims would then be subject to the AEDPA’s limitation on successive
filings, as well as AEDPA’s one-year statute of limitations. Second,
Petitioner may voluntarily dismiss this action and proceed with additional
post-conviction motion practice in Wisconsin courts. As with the first
option, this choice may limit future federal habeas corpus review of
Petitioner’s claims in light of the AEDPA one-year statute of limitations.
Accordingly,
IT IS ORDERED that Petitioner’s motion for an extension of time
(Docket #14) be and the same is hereby DENIED as moot;
IT IS FURTHER ORDERED that Petitioner’s request for a stay and
abeyance (Docket #13) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Petitioner shall file, no later than
fourteen (14) days from the date of this Order, either: (i) a notice indicating
that he wishes to proceed on his existing claim only; or (ii) a voluntary
dismissal of his petition altogether. If Petitioner fails to file such a
submission in accordance with the deadline set forth above, his petition will
be dismissed without further notice.

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Dated at Milwaukee, Wisconsin, this 28th day of September, 2017.
BY THE COURT:

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

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