Wright v. State of Wisconsin
SCREENING ORDER signed by Judge J.P. Stadtmueller on 11/30/2017. Within 30 days, Petitioner to: seek dismissal of this action while he exhausts claims in state court; move for a stay and abeyance while he exhausts claims in state court; or indicate that he wishes to proceed only on his exhausted claim and file an amended petition without the unexhausted claims. See Order. (cc: all counsel, via mail to James Lee Wright at Columbia Correctional Institution)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES LEE WRIGHT,
Case No. 17-CV-1585-JPS-JPS
STATE OF WISCONSIN,
On November 13, 2017, Petitioner James Lee Wright (“Wright”) filed
this petition pursuant to 28 U.S.C. § 2254, asserting that his state court
conviction and sentence were imposed in violation of the Constitution.
(Docket #1). Wright pleaded guilty to false imprisonment, resisting police,
and bail jumping, all as a repeat offender. (Docket #1-1 at 1). The court
sentenced Wright to over fifteen years’ imprisonment. (Docket #1 at 2).
Rule 4 of the Rules Governing § 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). Upon an initial Rule 4 review of habeas
The appropriate respondent is the warden of Columbia Correctional
Institution, Wright’s current place of confinement. 28 U.S.C. § 2242; Bridges v.
Chambers, 425 F.3d 1048, 1049 (7th Cir. 2005). If and when the Court calls on
Respondent to answer Wright’s petition, the state can provide the Court with the
petitions, the court will analyze whether the petitioner has avoided statute
of limitations bars, exhausted available state remedies, avoided procedural
default, and set forth cognizable constitutional or federal law claims.
The court begins its Rule 4 review by examining the timeliness of
Wright’s petition. A state prisoner in custody pursuant to a state court
judgment has one year from the date “the judgment became final” to seek
federal habeas relief. 28 U.S.C. § 2244(d)(1)(A). A judgment becomes final
within the meaning of Section 2244(d)(1)(A) when all direct appeals in the
state courts are concluded followed by either the completion or denial of
certiorari proceedings in the U.S. Supreme Court, or, if certiorari is not
sought, at the expiration of the 90 days allowed for filing for certiorari. See
Ray v. Clements, 700 F.3d 993, 1003 (7th Cir. 2012) (citing Anderson v. Litscher,
281 F.3d 672, 675 (7th Cir. 2002)).
Here, it appears Wright’s petition is timely. From the face of the
petition, it appears that Wright’s direct appeal concluded on April 10, 2017,
with the denial of his petition for review with the Wisconsin Supreme
Court. (Docket #1 at 3). He did not file a petition for certiorari to the United
States Supreme Court. Id. at 5. Because the petition in this case was filed on
November 13, 2017, it appears to satisfy the time constraints of Section
The court continues its Rule 4 review by examining Wright’s petition
to determine whether he has exhausted his state remedies. The district court
may not address the merits of the constitutional 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).
Accordingly, a state prisoner is required to exhaust the remedies available
in state court before a district court will consider the merits of a federal
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habeas petition. 28 U.S.C. § 2254(b)(1)(A); Dressler v. McCaughtry, 238 F.3d
908, 912 (7th Cir. 2001) (if petitioner “either failed to exhaust all available
state remedies or raise all claims before the state courts, his petition must
be denied without considering its merits.”).
If a federal habeas petition has even a single unexhausted claim, the
district court may be required to dismiss the entire petition and leave the
petitioner with the choice of either returning to state court to exhaust the
claim or amending or resubmitting the petition to present only exhausted
claims. See Rose v. Lundy, 455 U.S. 509, 510 (1982). Under Rhines v. Weber,
544 U.S. 269, 278 (2005), the Court should grant a stay to allow the petitioner
to return to state court to exhaust his claims when “the petitioner had good
cause for his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.” See also Purvis v. United States, 662
F.3d 939, 944 (7th Cir. 2011) (applying Rhines to a mixed petition brought
under 28 U.S.C. § 2255). The Court should also allow the petitioner to
amend his petition to remove any unexhausted claims before dismissing
the petition. Rhines, 544 U.S. at 278. 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) (citing Picard
v. Connor, 404 U.S. 270, 275 (1971); 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).
Wright offers four grounds for relief. First, the trial court failed to
establish Wright’s agreement with the factual basis for the false
imprisonment charge before accepting his guilty plea. (Docket #1 at 7-8). It
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appears that Wright brings this claim as a violation of his due process
rights. Id. at 8 (arguing that his plea was not knowing, intelligent, and
voluntary); United States v. Cruse, 805 F.3d 795, 804 (7th Cir. 2015). Also in
Ground One, Wright mentions the bail jumping charge, and suggests that
he received two different sentences from different judges on the same
charge. (Docket #1 at 8). Second, Wright says that he received ineffective
assistance of counsel in two ways: 1) counsel failed to advise him that his
conduct did not fit the charge of false imprisonment, and 2) counsel did not
object to his sentence, though it was excessive under Wisconsin law. Id. at
9-10. Third, Wright objects to having the sentences on his various counts of
conviction run consecutively. Id. at 11. Finally, Wright re-asserts as a
separate ground his belief that he received an excessive sentence under
Wisconsin law. Id. at 12.
On the face of the petition and the documents attached thereto, only
the first portion of Ground One was exhausted. The Wisconsin Court of
Appeals opinion addressing Wright’s direct appeal discussed only the due
process claim related to the false imprisonment guilty plea. (Docket #1-1 at
1-6). Neither the second portion of Ground One nor any of the other
grounds are mentioned. Id. While Grounds Three and Four have other fatal
defects, as discussed below, the second portion of Ground One and Ground
Two do not otherwise appear to be plainly meritless.
Because Wright presents a “mixed” petition of exhausted and
unexhausted claims, the Court must give him a choice. This choice,
however, will depend on the grounds upon which Wright seeks relief.
Wright can: (1) dismiss this petition in its entirety in order to exhaust all his
claims in state courts; (2) move for a stay and abeyance while he returns to
state court to exhaust his unexhausted claims; or (3) elect to proceed on only
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the exhausted claim described above. If he dismisses the unexhausted
claims, then the Court will be able to consider only his exhausted claim.
If Wright elects option (2) and wishes to maintain his unexhausted
claims and seek a stay and abeyance, he should file a separate motion for a
stay and abeyance. In that motion, Wright will need to show that he “had
good cause for his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278. If Wright
elects option (3) and wishes to dismiss his unexhausted claims and proceed
only on his exhausted claim, then he should: (a) file an amended petition
which does not include the unexhausted claims; and (b) file a separate letter
telling the Court that he wishes to proceed only on his exhausted claim.
Finally, if Wright elects option (1) and seeks to dismiss this action in its
entirety so that he may exhaust his claims in the state court, he may notify
the Court of that decision by letter. The Court hereby warns Wright that, if
he proceeds only on the exhausted claim, he may not be able to proceed on
his other claims in a second or successive petition. See 28 U.S.C. § 2244(b)(2).
Whichever course of action Wright elects to take, the Court will require him
to file his amended petition, motion, or letter as described herein within
thirty (30) days of the entry of this Order.
The Court returns to the screening process. It next reviews Wright’s
petition under Rule 4 to determine whether he has procedurally defaulted
on any of his claims. Even though a constitutional claim in a federal habeas
petition has been exhausted, the court is still barred from considering the
claim if it has been procedurally defaulted by the petitioner. See Mahaffey v.
Schomig, 294 F.3d 907, 915 (7th Cir. 2002) (citing Boerckel v. O’Sullivan, 135
F.3d 1194, 1196–97 (7th Cir. 1998), rev’d on other grounds by O’Sullivan v.
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Boerckel, 526 U.S. 838, 849 (1999)). A state prisoner procedurally defaults on
a constitutional claim in a habeas petition when he fails to raise the claim in
the state’s highest court in a timely fashion or in the manner prescribed by
state law. See O'Sullivan, 526 U.S. at 848; Thomas v. McCaughtry, 201 F.3d
995, 1000 (7th Cir. 2000). Here, on the record before the Court, is it not clear
that Wright has procedurally defaulted on his claims. Thus, the Court will
not reject any of his claims on this basis.
The Court concludes its Rule 4 review by screening for patently
frivolous and speculative claims in Wright’s federal habeas petition. See
Ray, 700 F.3d at 996 n.1 (citing Small, 998 F.2d at 414, for the proposition that
district courts may dismiss petitioners that fail to state a claim or are
factually frivolous). Grounds Three and Four are not only unexhausted,
they are also patently frivolous. Both grounds present issues of state law
which are not reviewable by a federal habeas court. King v. Pfister, 834 F.3d
808, 814 (7th Cir. 2016). If Wright elects option (3), he should not include
these claims in his amended petition.
IT IS ORDERED that, within thirty (30) days of the entry of this
Order, Petitioner shall: (1) file a letter seeking dismissal of this action in its
entirety while he exhausts his claims in state court; (2) move for a stay and
abeyance of this action while he exhausts his claims in state court; or (3) file
a letter indicating that he wishes to proceed only on his exhausted claim
and file an amended petition that does not include the unexhausted claims.
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Dated at Milwaukee, Wisconsin, this 30th day of November, 2017.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
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