Brito v. Malone

Filing 17

ORDER signed by Judge J.P. Stadtmueller on 10/18/2017 DENYING 16 Petitioner's request for legal advice. Within 14 days, Petitioner to file either a notice indicating that he wishes to proceed on his existing claim only or a voluntary dismissal of his petition altogether; failure to timely do so will result in dismissal of Petitioner's petition without further notice. (cc: all counsel, via mail to Gabriel Brito at Milwaukee Secure Detention Facility)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GABRIEL BRITO,

v.

Petitioner,

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

RONALD MALONE,
Respondent.

ORDER

On September 28, 2017, the Court instructed Petitioner to decide
whether to proceed solely on the basis of his existing, properly exhausted
claim or voluntarily dismiss this action and proceed with additional postconviction motion practice in Wisconsin courts. (Docket #15). The Court
explained that either option may limit future federal habeas corpus review
of Petitioner’s claims in light of the Antiterrorism and Effective Death
Penalty Act’s (AEDPA) one-year statute of limitations. Id.
On October 11, 2017, the Court received a response from Petitioner
in which he requests that the Court advise him of the “amount of days
available to exhaust the Habeas Corpus writ within the AEDPA ‘one-year
statute limitation.’” (Docket #16 at 1). He asks for this advice so that he can
decide whether to dismiss this action and pursue his unexhausted claims,
or proceed with this action on his properly exhausted claim. Id.
The Court cannot provide Petitioner with legal advice. He must
choose his litigation strategy on his own or, if he so chooses, he can retain a
lawyer to advise him. See Pruitt v. Mote, 503 F.3d 647, 657 (7th Cir. 2007)
(“[D]ue process does not require appointment of counsel for indigent
prisoners pursuing state postconviction remedies or federal habeas relief”

and “a prisoner’s right of access to the courts does not guarantee the effective
presentation of his civil claims”). The Court will therefore order Petitioner,
again, to choose either to proceed on his existing claim or voluntarily
dismiss this action in order to pursue exhaustion in the state courts.
Accordingly,
IT IS ORDERED that Petitioner’s request for legal advice (Docket
#16) 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.
Dated at Milwaukee, Wisconsin, this 18th day of October, 2017.
BY THE COURT:

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

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