Hopgood v. Richardson
ORDER signed by Magistrate Judge William E Duffin on 11/13/17. IT IS THEREFORE ORDERED that Hopgood's motion for stay and abeyance is granted. (ECF No. 2 ). The proceedings are stayed and Hopgood's petition is held in abeyance. Not later than 28 days after the exhaustion of his state court remedies or the expiration of time for seeking further review, Hopgood shall notify this court that the state court proceedings are completed and that this court's stay may be lifted. Failure to do so may result in the court dismissing this action. The Clerk shall close this case for statistical purposes. IT IS FURTHER ORDERED that Hopgood's motion for an evidentiary hearing (ECF No. 4 ) is denied without prejudice. IT IS FURTHER ORDERED that Hopgood's motion to appoint counsel (ECF No. 5 ) is denied without prejudice. (cc: all counsel, Mr. Hopgood via USPS) (mlm) (Main Document 9 replaced on 11/13/2017) (lz). Modified on 11/13/2017 (lz).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
STEVEN D. HOPGOOD,
Case No. 17-CV-1281
ORDER ON THE PETITION FOR A WRIT OF HABEAS CORPUS
Steven D. Hopgood is incarcerated at Stanley Correctional Institution, having
been convicted in Green Lake County for felony murder. On September 22, 2017, he
filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.)
Accompanying his petition were a motion asking that the court stay these proceedings
and hold the petition in abeyance to permit him to exhaust his remedies in state court
(ECF No. 2), a motion for an evidentiary hearing (ECF No. 4), and a motion to appoint
counsel. (ECF No. 5.)
Hopgood was convicted following a four-day jury trial in December 2012. The
court sentenced him on March 15, 2013. Hopgood appealed. He argued that (1) his trial
counsel provided ineffective assistance; (2) the state failed to disclose material
exculpatory evidence in time for use at trial; (3) newly discovered exculpatory evidence
warranted a new trial; (4) the circuit court erroneously exercised its discretion in
denying two mistrial motions, each based on improper statements by a prosecutor, and
(5) a new trial should be granted in the interest of justice. The court of appeals affirmed
his conviction on June 2, 2016. See Wis. Appeal No. 2014AP002742. The Wisconsin
Supreme Court denied review on September 22, 2016.
Hopgood now seeks habeas relief on multiple grounds. One of the grounds upon
which he seeks habeas relief states a claim that he exhausted in state court; the others do
not. And some of the claims were never presented to any state court, for which he seeks
a stay and abeyance.
First, he contends that he was denied effective assistance of counsel as a result of
his trial counsel’s failure to present evidence of a detective’s misconduct in his and
other cases. This claim was exhausted in state court. (ECF No. 1 at 7.)
Hopgood raises a number of other claims that were presented to the trial court
and to the Wisconsin Court of Appeals but not to the Wisconsin Supreme Court.
Specifically, Hopgood asserts that his trial counsel was ineffective for six additional
reasons. He also contends that the trial court failed to grant a mistrial after the State
vouched for another witness’s credibility in violation of Hopgood’s 14th Amendment
due process rights. He further contends that the state failed to provide to the defense
prior to trial evidence of the same detective requesting the reward funds offered by the
Finally, Hopgood asserts several grounds for relief that were not presented to
any of the state courts: trial counsel failed to investigate an alibi witness demonstrating
that Hopgood could not have been at the scene of the crime; trial counsel failed to
investigate the State’s chief and only witness who placed Hopgood at the scene of the
crime; trial counsel failed to properly move the court to sever the defendants’ trials and
the court errantly allowed a joint trial; and appellate counsel failed to raise all
meritorious issues presented on appeal to the Wisconsin Supreme Court.
Ordinarily the court would dismiss a habeas petition containing unexhausted
claims and instruct the petitioner to return to federal court only after exhausting his
state court remedies. But there is a one-year statute of limitations for filing a federal
habeas petition. 28 U.S.C. § 2244(d)(1). If the court were to dismiss Hopgood’s habeas
petition, the statute of limitations might bar refiling the petition, preventing Hopgood
from seeking federal habeas relief.
Hopgood’s conviction became final and the one-year clock began ticking on
December 22, 2016, when the deadline for Hopgood seeking review of his conviction by
the United States Supreme Court passed. See 28 U.S.C. § 2244(d)(1)(A); Ray v. Clements,
700 F.3d 993, 1003 (7th Cir. 2012) (citing Anderson v. Litscher, 281 F.3d 672, 674-75 (7th
Cir. 2002)); Sup. Ct. R. 13. Hopgood had one year from that date in which to file his
habeas petition. His petition was timely filed on September 22, 2017.
Having said that, if the court were to dismiss Hopgood’s petition so that he can
pursue the unexhausted claims in state court, once those claims are exhausted he likely
will have very little time to refile his habeas petition in federal court. The one-year clock
does not stop running with the filing of the federal habeas petition. Only “[t]he time
during which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending shall not be counted
toward [the one-year statute of limitations].” 28 U.S.C. § 2244(d)(2).
Under the stay and abeyance procedure approved by the Supreme Court in
Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L.Ed.2d 440 (2005), the district court
may stay the federal habeas proceedings and hold the petition in abeyance while the
petitioner exhausts his remedies in state court. This preserves the petitioner’s ability to
seek habeas relief but affords the state courts the first opportunity to remedy any
constitutional errors in the petitioner’s conviction. But because the stay and abeyance
procedure would undermine the finality and expediency that Congress sought when it
passed the Antiterrorism and Effective Death Penalty Act, “stay and abeyance should be
available only in limited circumstances.” Rhines, 544 U.S. at 277. “[S]tay and abeyance is
only appropriate when the district court determines there was good cause for the
petitioner’s failure to exhaust his claims first in state court.” Id. Moreover, the claims
must be plausibly meritorious. Id.
There is no federal constitutional right to the effective assistance of counsel in a
discretionary appeal such as Hopgood’s petition for review to the Wisconsin Supreme
Court. The constitutional right to counsel is guaranteed to a defendant only for trial and
for the first appeal as of right. Ross v. Moffitt, 417 U.S. 600, 610-12 (1974). The Wisconsin
Supreme Court has recognized a criminal defendant’s right to counsel, including for the
filing of a petition for review as a matter of statutory as opposed to constitutional law. See
State v. Mosley, 102 Wis. 2d 636, 662-68, 307 N.W.2d 200, 215-17 (1981) (discussing
Moffitt, 417 U.S. 600). “A claim of ineffective assistance of postconviction counsel should
be raised in the trial court either by a petition for habeas corpus or a motion under
§ 974.06.” State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 681, 556 N.W.2d 136
However, Hopgood may be able to use ineffective assistance of appellate counsel
to avoid procedural default. Generally, before turning to a federal court for relief by
way of a petition for a writ of habeas corpus under 28 U.S.C. § 2254 a person convicted
in state court must first exhaust the remedies available to him in state court. 28 U.S.C.
§ 2254(b)(1)(A),(C). To satisfy the exhaustion requirement the prisoner must fairly
present his claim in each appropriate state court, including a state supreme court with
powers of discretionary review. Baldwin v. Reese, 541 U.S. 27, 29 (2004). Where the
petitioner has pursued state remedies, and there is no longer state corrective process
available, the bar to federal habeas relief is not exhaustion but procedural default. Bolton
v. Akpore, 730 F.3d 685, 696 (7th Cir. 2013). In certain circumstances, counsel’s
ineffectiveness in failing to properly preserve a claim for review might suffice to
constitute “cause” that excuses a procedural default. Edwards v. Carpenter, 529 U.S. 446,
451 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)).
Hopgood explains that with the assistance of law clerks he has identified
additional potentially meritorious issues which were not raised at the trial, appellate, or
supreme court levels. He states that the basis for the delay in fully exhausting all of his
state court remedies, leading to the one-year statute of limitations likely barring refiling
a habeas petition after exhaustion, is that he has not yet received the full working files
from counsel and his access to the law library and legal assistance is limited to four
hours per week. Because timeliness, exhaustion, and procedural default are affirmative
defenses that the respondent may waive, see Wood v. Milyard, 566 U.S. 463, 474 (2012)
(addressing waiver of timeliness defense) and 28 U.S.C. § 2254(b)(3), and which
petitioners may evade under certain circumstances, see, e.g., Edwards, 529 U.S. at 451;
Schlup v. Delo, 513 U.S. 298, 314-15 (1995), at this point the court cannot establish that
Hopgood’s claims are clearly meritless. Thus, the court finds it appropriate to stay these
proceedings and hold the petition in abeyance to permit Hopgood to exhaust his state
Finally, Hopgood’s motions for an evidentiary hearing (ECF No. 4) and to
appoint counsel (ECF No. 5) are premature. Therefore, both motions will be denied
without prejudice. Hopgood is free to renew such motions later in the proceedings.
IT IS THEREFORE ORDERED that Hopgood’s motion for stay and abeyance is
granted. The proceedings are stayed and Hopgood’s petition is held in abeyance. Not
later than 28 days after the exhaustion of his state court remedies or the expiration of
time for seeking further review, Hopgood shall notify this court that the state court
proceedings are completed and that this court’s stay may be lifted. Failure to do so may
result in the court dismissing this action. The Clerk shall close this case for statistical
IT IS FURTHER ORDERED that Hopgood’s motion for an evidentiary hearing
(ECF No. 4) is denied without prejudice.
IT IS FURTHER ORDERED that Hopgood’s motion to appoint counsel (ECF
No. 5) is denied without prejudice.
Dated at Milwaukee, Wisconsin this 13th day of November, 2017.
WILLIAM E. DUFFIN
U.S. Magistrate Judge
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