Braithwaite v. Eckstein

Filing 8

ORDER signed by Judge Pamela Pepper on 10/30/2017. 2 Petitioner's MOTION for leave to proceed without prepayment of the filing fee GRANTED. 4 6 Petitioner's MOTIONS for stay and abeyance GRANTED. Case STAYED until petitioner has exhaus ted state court remedies; petitioner to file status report every 90 days updating state court progress; petitioner to file notice within 30 days after conclusion of state court proceedings. (cc: all counsel, via mail to Joshua Braithwaite and Warden at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JOSHUA BRAITHWAITE,
Petitioner,
v.

Case No. 17-cv-1372-pp

WARDEN SCOTT ECKSTEIN,
Respondent.

ORDER GRANTING PETITIONER’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2),
AND GRANTING PETITIONER’S MOTIONS
FOR STAY AND ABEYANCE (DKT. NOS. 4, 6)
______________________________________________________________________________
Petitioner Joshua Braithwaite filed a petition for writ of habeas corpus
under 28 U.S.C. §2254, challenging his 2014 judgment of conviction in
Milwaukee County Circuit Court on charges of murder, sexual assault and
kidnapping. Dkt. No. 1. On appeal in state court, the petitioner argued that the
trial court erred in denying his motion for a mistrial after his probation agent
revealed to the jury that the petitioner had a prior sexual offense conviction.
State v. Braithwaite, 2016 WL 7177464, *1 (Wis. Ct. App. Dec. 7, 2016). The
Wisconsin Court of Appeals affirmed the conviction based on the trial court’s
cautionary instructions, post-verdict voir dire and assurances from each juror
that the information did not impact their verdicts. Id. at *3. The Court of
Appeals also found sufficient evidence to support the finding of guilt. Id. The

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Wisconsin Supreme Court denied the petition for review on March 13, 2017.
State v. Braithwaite, 374 Wis. 2d 161 (2017).
I.

Motion for Leave to Proceed Without Prepayment of the Filing Fee
The petitioner filed a motion for leave to proceed without prepayment of

the $5.00 filing fee. Dkt. No. 2. The court has reviewed the petitioner’s affidavit
and trust account statement, and is satisfied that the petitioner does not have
funds available to pay the $5 filing fee. The court will grant the motion.
II.

Rule 4 Screening and Motions 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 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.” 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, exhausted in the state court system and
not procedurally defaulted.
The petitioner raises three grounds for relief. The first issue he raises—
whether the trial court erroneously exercised its discretion when denying his
motion for a mistrial after the probation agent revealed his prior adjudication
for a sexual offense—is one that he raised in his state court appeal. In the
§2254 petition, however, he frames the issue as a violation of his right to a fair
trial. It is not clear whether that is the way he presented the issue to the state
courts. See State v. Braithwaite, 2016 WL 7177464 at *1. The other two
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grounds he raises here are whether he had notice of the investigation or the
charges on which he was convicted, and whether officers coerced him into
making an involuntary self-incriminating statement using “trickery” and
misconduct. Dkt. No. 1 at 7-8. He concedes that he did not raise the last two
grounds in state court, explaining that his post-conviction counsel was
ineffective. Id.
On October 10, 2017, the court received from the petitioner a motion,
asking the court to stay the federal habeas proceedings while he exhausted his
state court remedies. Dkt. No. 4. Specifically, he indicated that he was
pursuing a Wis. Stat. §974.06 petition regarding his allegation that his postconviction counsel was ineffective. Id.
On October 13, 2017, the court received a second motion from the
petitioner, again asking the court to stay the federal habeas proceedings so
that he could exhaust his remedies in state court. Dkt. No. 6.
Under 28 U.S.C. §2254(b)(1)(A), this court cannot grant habeas relief
until a petitioner has first 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.
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§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,
416 (2005)). “[W]henever good cause is shown and the claims are not plainly
meritless, stay and abeyance is the preferred course of action.” Id.
Liberally construing the allegations, the court finds that the petitioner
has alleged colorable constitutional violations of the Fifth, Sixth and
Fourteenth Amendments, and that he has shown good cause for failing to raise
these arguments in state court. Nothing in the record suggests that the
petitioner is bringing these claims to delay the litigation. The court will grant
the petitioner’s motion to stay and hold this case in abeyance while the
petitioner returns to state court to exhaust his claims.
III.

Conclusion
The court GRANTS the petitioner’s motion for leave to proceed without

the prepayment of the filing fee. Dkt. No. 2.
The court GRANTS petitioner’s motions to stay and hold this case in
abeyance. Dkt. Nos. 4, 6.
The court ORDERS that the federal proceedings are STAYED until the
petitioner has exhausted his state court remedies. The court ORDERS that,
every ninety (90) days from today’s date, the petitioner shall file with the court
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a status report, letting the court know his progress in state court. The court
further ORDERS that within thirty days after the conclusion of his state court
proceedings, the petitioner shall file a notice with this court, informing the
court that the state proceedings are finished.
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 Green Bay
Correctional Institution.
Dated in Milwaukee, Wisconsin this 30th day of October, 2017.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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