Braithwaite v. Eckstein

Filing 12

ORDER signed by Judge Pamela Pepper on 4/26/2018 DENYING as moot 10 petitioner's motion for stay and abeyance. Petitioner need not file any further status reports with the court. Clerk's office to close case administratively. Within 30 days after conclusion of state court proceedings, petitioner may file motion to reopen case and lift stay. (cc: all counsel, via mail to Joshua Braithwaite at Wisconsin Secure Program Facility) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JOSHUA P. BRAITHWAITE,
Petitioner,
v.

Case No. 17-cv-1372-pp

WARDEN SCOTT ECKSTEIN,
Respondent.

ORDER DENYING AS MOOT PETITIONER’S MOTION FOR STAY AND
ABEYANCE (DKT. NO. 10) AND DIRECTING CLERK’S OFFICE TO CLOSE
THE CASE FOR ADMINISTRATIVE PURPOSES PENDING THE EXHAUSTION
OF STATE COURT REMEDIES

The petitioner filed a petition for writ of habeas corpus on October 10,
2017, dkt. no. 1, along with a motion for stay and abeyance, dkt. no. 4. The
petitioner filed a second motion for stay and abeyance on October 13, 2017.
Dkt. No. 6. On October 30, 2017, the court granted petitioner’s motions for
stay and abeyance, and stayed the case until the petitioner had exhausted his
state court remedies. Dkt. No. 8. The court also asked the petitioner to file a
status report every ninety days, updating the court regarding his progress in
state court. Id.
On December 29, 2017, the petitioner filed a third motion for stay and
abeyance. Dkt. No. 10. A month later, he filed a status report indicating that he
had sent a letter to the court of appeals, and that he intended to file a Knight

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petition. Dkt. No. 11. He explained that it had been difficult for him to file the
status report in ninety days. Id.
Given the current circumstances, the court is not going to require the
petitioner to continue filing updates, especially because he has difficulty doing
so. Because the petitioner is in the early stages of the Knight petition process,
the court is going to administratively close the petitioner’s case (with the
parties retaining all the rights they would have had had the case not been
closed for administrative purposes), until the petitioner notifies the court that
his state court proceedings have finished. As soon as the state court litigation
is complete, the petitioner may file a one-sentence motion, asking the court to
reopen his case and to lift the stay. The court will grant that motion
immediately, and the filing date for the petition will remain October 10, 2017.
In other words, the administrative closure and subsequent reopening will not
change the fact that, for statute of limitation purposes, the petitioner filed his
petition on October 10, 2017.
The court DENIES AS MOOT the petitioner’s motion for stay and
abeyance. Dkt. No. 10. The court ORDERS the clerk of court to CLOSE this
case for administrative purposes. The petitioner shall file a motion to reopen
the case and lift the stay within thirty days after conclusion of the state court

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proceedings. The petitioner need not file any further status reports with this
court.
Dated in Milwaukee, Wisconsin this 26th day of April, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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