Cotton v. Eckstein

Filing 6

SCREENING ORDER signed by Judge J.P. Stadtmueller on 9/19/2017: DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; DISMISSING action without prejudice for failure to exhaust state remedies; and DENYING certificate of appealability. (cc: all counsel, via mail to Michael P. Cotton at Green Bay Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL P. COTTON,

v.

Petitioner,

WARDEN SCOTT ECKSTEIN,

Case No. 17-CV-1103-JPS

ORDER

Respondent.

On August 9, 2017, Michael Cotton (“Cotton”) filed this petition
pursuant to 28 U.S.C. § 2254, asserting that his post-conviction
proceedings in Wisconsin state court have been unreasonably delayed, in
violation of his constitutional right to due process. (Docket #1). Cotton has
paid the $5.00 filing fee, and so the Court now turns to screening his
petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in
the United States District Courts.
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 corpus 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.” This Rule provides the district court the power to
dismiss both those petitions that do not state a claim upon which relief
may be granted and those petitions that are factually frivolous. See Small v.
Endicott, 998 F.2d 411, 414 (7th Cir. 1993). Under Rule 4, the Court
analyzes preliminary obstacles to review, such as whether the petitioner
has complied with the statute of limitations, exhausted available state
remedies, avoided procedural default, and set forth cognizable claims.

On August 31, 2012, Cotton was sentenced in Milwaukee County
Circuit Court to serve thirty-five years in prison after a jury convicted him
of four counts of first-degree sexual assault of a child.1 He initiated his
direct appeal of the conviction and sentence on September 11, 2012, by
filing a notice of intent to pursue post-conviction relief. However, his
appointed appellate counsel, having received the trial transcript by
December 2012, neglected to file a motion for post-conviction relief or a
notice of appeal for nearly two years. Cotton complained about the delay
in several motions and grievances which he filed pro se, but they were
summarily denied.
Counsel filed a two-page motion for post-conviction relief on
November 3, 2014, raising issues regarding ineffective assistance of trial
counsel. The trial court took almost a year to consider and deny the
motion. Appellate counsel then withdrew from representing Cotton, and
he faced months of difficulty collecting the trial record for his own review.
He then filed his own supplemental motion for post-conviction relief,
which the trial court promptly denied. He appealed the denial of postconviction relief on June 17, 2016. His appeal was fully briefed in January
2017.
At the time Cotton filed his petition on August 9, 2017, the appeal
had not been decided. However, according to publicly available
Wisconsin court records, it appears that the Wisconsin Court of Appeals
decided his appeal on August 29, 2017. The Court of Appeals affirmed
Cotton’s conviction and sentence.
A search of the publicly available records of the Wisconsin courts reveals
that this case is designated Milwaukee County Circuit Court Case No.
2011CF000071.
1

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Cotton’s petition is unlike many seen in this Court. He does not ask
for review at this time of the substantive claims he has raised in the state
court. (Docket #1 at 5). Indeed, he says that he expects a decision from the
Wisconsin Court of Appeals shortly on those claims. Id. According to the
state court records, he has now received that adjudication. Instead, Cotton
desires to proceed apace in this Court on the claim that the delay in his
state-court proceedings itself amounts to a due-process violation for
which he can seek immediate habeas relief. See Haas v. Jenkins, No.
07C0480, 2008 WL 283056, at *1 (E.D. Wis. Jan. 31, 2008) (discussing nature
of due-process claim based on delay in adjudicating state criminal appeal).
Normally, any claim presented to a district court in a Section 2254
petition must first be heard and decided by the state courts. 28 U.S.C. §
2254(b)(1)(A); Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir. 2001).
Nevertheless, the Courts of Appeal agree that undue delay in postconviction proceedings is open to immediate redress in federal court. See
Turner v. Bagley, 401 F.3d 718, 724–25 (6th Cir. 2005); Simmons v. Beyer, 44
F.3d 1160, 1169-71 (3d Cir. 1995); Harris v. Champion, 15 F.3d 1538, 1558–59
(10th Cir. 1994); Allen v. Duckworth, 6 F.3d 458, 459–60 (7th Cir. 1993). Yet
the Seventh Circuit has made clear that once a state appeal is decided, any
potential due-process violation caused by delay alone vanishes. In Allen,
the Court of Appeals explained:
It is conceivable that delay in processing an imprisoned
defendant’s appeal might make his continued imprisonment
unlawful, but once the delay ends with an appellate decision
not claimed to be invalid by reason of delay, as in this case,
any ground for ordering him released evaporates. The
petitioner was duly convicted, and the conviction upheld, if
belatedly, in an appellate decision not claimed to be infected

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by any error that would justify his release on habeas corpus.
He should serve his time.
Allen, 6 F.3d at 459. Thus, because the present stage of Cotton’s appeal has
been decided, even if after substantial delay, he can no longer seek redress
in this Court based on that delay. That claim must be dismissed.2
In his petition, Cotton sets forth in detail the substantive claims of
ineffective assistance of trial counsel he raised in Wisconsin court. (Docket
#1 at 2–3). Yet in the same breath he seems to say that he does not want
the Court to consider those claims. Id. at 5. Whether or not he desires the
Court to consider the substantive claims now that his appeal has been
moved along, the Court notes that those claims are not yet fully
exhausted.
As noted above, a district court generally may not address the
merits of claims raised in a federal habeas petition “unless the state courts
have had a full and fair opportunity to review them.” Farrell v. Lane, 939
F.2d 409, 410 (7th Cir. 1991); Dressler, 238 F.3d at 912. A petitioner exhausts
his constitutional claim when he presents it to the highest state court for a
ruling on the merits. Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir. 2007);
Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir. 2004). Once the state’s
highest court has had a full and fair opportunity to pass upon the merits
of the claim, a prisoner is not required to present it again to the state
courts. Humphrey v. Cady, 405 U.S. 504, 516 n.18 (1972).
Here, the available court records make plain that Cotton has not
fully exhausted his substantive claims. The Wisconsin Court of Appeals
Whether some unreasonable delay of proceedings in the Wisconsin
Supreme Court could give rise to a new due-process claim based on delay is not
before the Court at this time. Nor could it be, as the State’s highest court has not
yet even been asked to review Cotton’s case.
2

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has passed on them only recently, and Cotton has not sought review in the
Wisconsin Supreme Court. Until the Wisconsin Supreme Court decides
his appeal or denies his application for review, the claims remain
unexhausted. He may return to this Court, if he chooses, once the claims
are fully exhausted. Slack v. McDaniel, 529 U.S. 473, 487 (2000). For the
time being, however, his petition must be dismissed.
Under Rule 11(a) of the Rules Governing Section 2254 Cases, “the
district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Cotton must make a
“substantial showing of the denial of a constitutional right” by
establishing that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal citations omitted). Further, when the Court has denied
relief on procedural grounds, the petitioner must show that jurists of
reason would find it debatable both that the “petition states a valid claim
of the denial of a constitutional right” and that “the district court was
correct in its procedural ruling.” Slack, 529 U.S. at 484. In this case, no
reasonable jurists could debate whether Cotton’s due-process claim based
on delay is moot or whether his substantive ineffective-assistance claims
remain unexhausted. As a consequence, the Court is compelled to deny
him a certificate of appealability.
Finally, the Court closes with some information about the actions
that Cotton may take if he wishes to challenge the Court’s resolution of
this case. This order and the judgment to follow are final. A dissatisfied
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party may appeal this Court’s decision to the Court of Appeals for the
Seventh Circuit by filing in this Court a notice of appeal within 30 days of
the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. Id.
4(a)(5)(A). Moreover, under certain circumstances, a party may ask this
Court to alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil Procedure
59(e) must be filed within 28 days of the entry of judgment. The Court
cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under
Federal Rule of Civil Procedure 60(b) must be filed within a reasonable
time, generally no more than one year after the entry of the judgment. The
court cannot extend this deadline. Id. A party is expected to closely review
all applicable rules and determine what, if any, further action is
appropriate in a case.
Accordingly,
IT IS ORDERED that Petitioner’s petition for a writ of habeas
corpus (Docket #1) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED without prejudice for failure to exhaust state
remedies; and
IT IS FURTHER ORDERED that a certificate of appealability be
and the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.

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Dated at Milwaukee, Wisconsin, this 19th day of September, 2017.
BY THE COURT:

___________________________________________

J. P. Stadtmueller
U.S. District Judge

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