Nichols v. Litscher et al

Filing 6

ORDER signed by Judge Pamela Pepper on 2/2/2018 GRANTING 5 plaintiff's motion to stay federal habeas proceedings. Case STAYED until petitioner has exhausted state court remedies. Clerk's office to CLOSE case for administrative purposes. Petitioner to file "motion to reopen" within 30 days of conclusion of state court proceedings. (cc: all counsel, via mail to Warden, Wisconsin Secure Program Facility) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JAMES A. NICHOLS,
Plaintiff,
v.

Case No. 17-cv-662-pp

JON E. LITSCHER
and J.B. VAN HOLLEN,
Defendants.
ORDER GRANTING AMENDED MOTION TO STAY AND ABATE
PROTECTIVE PETITION (DKT. NO. 5) AND CLOSING CASE FOR
ADMINISTRATIVE PURPOSES WITH THE RIGHT TO REOPEN

On May 10, 2017, the petitioner, through counsel, filed a petition for writ
of habeas corpus, challenging his November 28, 2007 judgment of conviction in
Marinette County Circuit Court. Dkt. No. 1. A jury had found the petitioner
guilty on the following counts: second-degree intentional homicide with use of a
dangerous weapon under Wis. Stat. §940.05(1) and 939.63; being a felon in a
possession of a firearm in violation of Wis. Stat. §941.29(2)(a); and hiding a
corpse under Wis. Stat. §940.11(2)—all as a habitual criminal under Wis. Stat.
§939.62(1)(c). Id. at 1. The petitioner filed a direct appeal, and the court of
appeals affirmed the convictions. State v. Nichols, 317 Wis. 2d 730 (Ct. App.
2009). On April 2, 2009, the Wisconsin Supreme Court denied the petition for
writ of certiorari. Nichols, 321 Wis. 2d 48 (2009). Eight years later, the

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petitioner filed a Knight1 petition in the court of appeals, alleging ineffective
assistance of appellate counsel. Id. at 4. On that same date, he filed the instant
habeas petition in this court. Dkt. No. 1. The next day, he filed a motion to stay
the habeas proceedings in this court. Dkt. No. 4. Before the court ruled on that
motion, the petitioner filed an amended motion to stay the federal proceedings.
Dkt. No. 5. In this amended motion, he notified the court that the court of
appeals had dismissed the Knight petition on the ground that he should have
raised his claim in the trial court in a Wis. Stat. §974.06 motion. Id. at 2. The
petitioner also noted that Wisconsin law appeared to be unsettled on the
question of where a party should raise an ineffective assistance of counsel
claim. Id. at 3. The petitioner urged the court to stay the federal proceedings,
so that he could litigate these issues in state court and exhaust his remedies.
Id. at 6. The court will grant the amended motion to stay. The court will direct
the clerk’s office to administratively close the case, subject to reopening—and
preservation of the original filing date—once the petitioner has exhausted his
state remedies.
I.

Filing Requirements
The petitioner challenges his convictions in Marinette County Circuit

Court, and he is incarcerated in that county. Under 28 U.S.C. §2241(d), a
habeas petitioner files in the federal judicial district where the person is in
custody, or in the district of the sentencing court. The General Order Regarding
Assignment of Cases to the United States District Judge Designated to Hold

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State v. Knight, 484 N.W.2d 509 (Wis. 1992).
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Court in Green Bay provides that habeas cases are randomly assigned among
the judges in either division of the Eastern District, regardless of the district in
which the person is in custody or in which the sentencing court sat. See
http://www.wied.uscourts.gov/local-rules-and-orders, under the “Standing
Orders” category (8th link in the list). Under that order, the petitioner’s case is
properly before this court.
The petitioner paid the $5 fee at the time of filing. Although the petitioner
did not use the form required by the civil local rules, counsel has provided all
information necessary for the court to review the petition, as required by the
federal habeas rules. See Civil L.R. 9(a)(1)(E.D. Wis.), accessible at
http://www.wied.uscourts.gov/local-rules-and-orders, under the “U.S. District
Court for the Eastern District of Wisconsin Local Rules General, Civil, and
Criminal” category (1st link on the list).
II.

Rule 4 Screening and Motion for Stay
Rule 4 of the Rules Governing Section 2254 Cases in the United States

District Courts authorizes a district court to conduct an initial screening of
habeas petitions, and to dismiss a petition summarily where “it plainly appears
from the face of the petition . . . that the petitioner is not entitled to relief.” At
this stage, the court reviews the petition and any exhibits to determine whether
the petitioner has stated constitutional or federal law claims that are
cognizable on habeas review, have been exhausted in the state court system
and have not been procedurally defaulted.

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The petition alleges that both trial and appellate counsel were ineffective
in numerous ways. Dkt. No. 1. It alleges that trial counsel was ineffective in
failing to call the petitioner to testify in support of his self-defense defense, dkt.
no. 1 at 6, and that appellate counsel was ineffective for failing to raise the fact
that trial counsel did not file a motion to dismiss and vacate his Count One
conviction and for failing to request a new sentencing hearing on Counts Two
and Three, dkt. no. 1 at 8. It alleges that trial counsel was ineffective for failing
to file a motion to sever Count One from Counts Two and Three, and for failing
to stipulate to the petitioner’s status as a repeat offender so that the jury would
not hear about it multiple times. Dkt. No. 1 at 9-10. It asserts that appellate
counsel was ineffective for failing to raise these errors on appeal. Id. at 11. It
implies—although does not state directly—that trial counsel erred in failing to
demand that the state produce DNA evidence, dkt. no. 1 at 12-14, and that
appellate counsel was ineffective for failing to raise the error on appeal, dkt. no.
1 at 15. The petition states that appellate counsel was ineffective in failing to
file a timely motion to dismiss the homicide count under Wis. Stat. §974.06,
dkt. no. 1 at 16-18, and that appellate counsel erred in failing to raise that
deficiency on appeal, dkt. no. 1 at 18. It asserts that trial counsel was
ineffective for failing to file a motion to suppress statements the petitioner
made to hospital staff and to suppress his identity, dkt. no. 1 at 20-22, and
that appellate counsel was deficient in failing to raise that error on appeal, dkt.
no. 1 at 22-23. It alleges that trial counsel was ineffective for failing to request
a special jury instruction “regarding the prohibition of pyramiding of inference
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upon inference in order to reach a conclusion of guilt,” dkt. no. 1 at 23, and
that appellate counsel erred in filing to make that argument on appeal, dkt. no.
1 at 25. Finally, the petition asserts that trial counsel was ineffective in failing
to explore and argue the question of whether the decedent threatened the
petitioner and coerced him into committing the charged offenses, dkt. no. 1 at
25-26, and that appellate counsel erred in failing to raise that failure on
appeal, dkt. no. 1 at 26-27.
Under 28 U.S.C. §2254(b)(1)(A), this court cannot grant habeas relief
until a petitioner has exhausted his available state court remedies. Generally,
courts consider a claim exhausted if a petitioner presents it through one
“complete round of the State’s established appellate review process.” Woodford
v. Ngo, 548 U.S. 81, 92 (2006). If a petitioner presents a claim in federal court
that has not been exhausted in state court, the federal court has several
options—dismiss the federal case entirely; stay the federal case to let the
petitioner go back to state court to exhaust his remedies; or allow the petitioner
to amend his petition to remove the unexhausted claims. 28 U.S.C.
§2254(b)(1)(A); see also Rhines v. Weber, 544 U.S. 269, 278 (2005). For that
reason, the Supreme Court has “instructed prisoners who are unsure about
whether they have properly exhausted state remedies, to file a ‘protective’
petition in federal court and ask the federal court to stay and abey the federal
habeas proceedings until state remedies are exhausted.” Tucker v. Kingston,
538 F.3d 732, 735 (7th Cir. 2008) (quoting Pace v. Diguglielmo, 544 U.S. 408,

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416 (2005)). “Whenever good cause is shown and the claims are not plainly
meritless, stay and abeyance is the preferred course of action.” Id.
The petitioner’s amended motion to stay explains that the court of
appeals denied his Knight petition on May 12, 2017, on the basis that he
should have raised his ineffective assistance of appellate counsel claims in the
trial court through a Wis. Stat. §974.06 motion. Dkt. No. 5 at 2. He argues that
the court of appeals’s decision creates a conflict in state law, and requires him
both to litigate whether Knight has been overruled (presumably by filing a
petition for review in the Wisconsin Supreme Court) and file a Wis. Stat.
§974.06 motion for post-conviction relief. Id. at 6. From the state court docket,
it appears that counsel has taken steps to pursue post-conviction relief. See
State v. Nichols, Case No. 2007CF000005 (Marinette County Circuit Court)
(accessible at https://wcca.wicourts.gov).
Liberally construing the allegations, the court finds that the petitioner
has alleged colorable constitutional violations, including allegations that his
trial and appellate counsel’s errors violated his rights under the Sixth and
Fourteenth Amendments. Despite conceding that his federal habeas petition
appears to be time-barred, the petitioner also has raised questions as to
whether the doctrine of equitable tolling may apply. Given the nature of his
claims and the absence of any evidence of bad faith, the court will grant the
petitioner’s motion to stay the federal proceedings while the petitioner exhausts
his claims in state court.

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III.

Conclusion
The court GRANTS the petitioner’s motion to stay the federal habeas

proceedings. Dkt. No. 5.
The court ORDERS that the federal proceedings are STAYED until the
petitioner has exhausted his state court remedies.
The DIRECTS the clerk of court to CLOSE this case for administrative
purposes. The court ORDERS that within thirty days after the conclusion of
his state court proceedings, the petitioner shall file a motion with this court
(captioned “Motion to Reopen”), under the same case number, informing the
court that the state court proceedings are finished and asking the court to
reopen the federal case. Upon receipt of that motion, the court will reopen the
case immediately, with the parties retaining all rights they would have had had
the case not been closed for administrative purposes. The petitioner will have
the benefit of the original filing date.
Under the Memorandum of Understanding between the Attorney General
and this court, the court will send a copy of the petition and this order to the
Attorney General for the State of Wisconsin and the warden of the institution
having custody of the petitioner.
Dated in Milwaukee, Wisconsin this 2nd day of February, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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