Braithwaite v. Eckstein

Filing 16

ORDER signed by Chief Judge Pamela Pepper on 1/9/2023. 14 Petitioner's request for additional time DENIED AS UNNECESSARY. 15 Petitioner's request to reopen case DENIED WITHOUT PREJUDICE. (cc: all counsel and mailed to Joshua Braithwaite at Wisconsin Secure Program Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JOSHUA P. BRAITHWAITE,
Plaintiff,
v.

Case No. 17-cv-1372-pp

SCOTT ECKSTEIN,
Defendant.

ORDER DENYING AS UNNECESSARY REQUEST FOR ADDITIONAL TIME
(DKT. NO. 14) AND DENYING WITHOUT PREJUDICE MOTION TO REOPEN
(DKT. NO. 15)

On October 30, 2017, the court granted the petitioner’s motions for stay
and abeyance and stayed this case until the petitioner could exhaust his state
court remedies. Dkt. No. 8. The court ordered that within thirty days after the
conclusion of the state court proceedings, the petitioner must file a motion to
reopen the case and lift the stay. Id. at 5.
On April 30, 2018, the court received from the petitioner a document
“mov[ing] the court to let him finish up issues in the state court . . . .” Dkt. No.
14. The court took no action on that request; it didn’t need to, because the case
had been administratively closed. The petitioner could take all the time he
needed in state court; all he needed to do was to file a motion to reopen this
case once he had finished exhausting his state-court remedies.
But it appears that the petitioner was not clear on what was necessary to
exhaust his state-court remedies. On November 22, 2022, the court received
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from the petitioner a document asking the court to “reknown [sic] [his] writ of
habeas corpus.” Dkt. No. 15 at 2. The court construes that request as a motion
to reopen the case and lift the stay.
The petitioner attached to his motion an order from the Wisconsin Court
of Appeals dated November 15, 2022, denying his Knight petition.1 Dkt. No. 151. The petitioner did not indicate whether he had filed, or planned to file, a
petition for review in the Wisconsin Supreme Court. The court checked the
publicly available docket for the Supreme Court; there is no indication that the
petitioner sought any relief from the Supreme Court in 2022. To exhaust
remedies, a petitioner must “invok[e] one complete round of the State’s
established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838,
845 (1999). In Wisconsin, that means that if the petitioner loses in the court of
appeals, he must petition the Wisconsin Supreme Court for review. If the
Supreme Court either refuses to grant review or reviews the decision of the
Court of Appeals and confirms it, then the petitioner has exhausted his state
remedies.
At this time, it is not clear to the court whether the petitioner has
exhausted his state court proceedings. The court will deny without prejudice
the petitioner’s motion to reopen his case because it appears the motion is
premature; he may file the motion after he has petitioned the Supreme Court
for review and the Supreme Court has responded.
State v. Knight, 168 Wis. 2d 509 (Wis. 1992), holding that a claim for
ineffective assistance of counsel must be brought through a petition for habeas
corpus filed in the court of appeals.
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The court DENIES AS UNNECESSARY the petitioner’s motion for
additional time. Dkt. No. 14.
The court DENIES WITHOUT PREJUDICE the petitioner’s motion to
reopen the case. Dkt. No. 15.
Dated in Milwaukee, Wisconsin this 9th day of January, 2023.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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