Thomas v. Smith

Filing 4

SCREENING ORDER signed by Judge J.P. Stadtmueller on 12/29/2017. Briefing as to statute of limitations issue to PROCEED as follows: Respondent's opening brief due by 1/29/2018; Petitioner's response due by 2/28/2018; Respondent's reply due by 3/14/2018. No extensions of time for filing these briefs will be granted. See Order. (cc: all counsel, via mail to Ervin W. Thomas at Oshkosh Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ERVIN W. THOMAS,
Petitioner,

v.

Case No. 17-CV-1598-JPS

JUDY P. SMITH,
Respondent.

ORDER

On November 16, 2017, Petitioner Ervin W. Thomas (“Thomas”)
filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
alleging that this conviction and sentence were imposed in violation of the
Constitution and laws of the United States. (Docket #1). The Court will
now turn to screening the petition under Rule 4 of the Rules Governing
Section 2254 Proceedings. That Rule 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). Under
Rule 4, the Court analyzes preliminary obstacles to review, such as
whether the petitioner has complied with the statute of limitations,
exhausted available state remedies, avoided procedural default, and set
forth cognizable claims.

Thomas’ petition focuses on the Interstate Agreement on Detainers
(“IAD”), codified in Wisconsin in Wis. Stat. § 976.05, which requires a
defendant to be brought to trial within 180 days of a demand for the same.
“The IAD is a congressionally approved interstate compact that
establishes procedures for the transfer of a prisoner in one jurisdiction to
the temporary custody of another.” States v. Thomas, 834 N.W.2d 425, 429
(Wis. Ct. App. 2013) (quotation omitted). Central to this case is when
Thomas’ notice invoking his IAD speedy-trial right was considered to be
received by the Milwaukee County District Attorney’s Office. See Wis.
Stat. § 976.05(3)(a).
Because the statute of limitations presents an initial obstacle to
Thomas’ petition, as explained further below, only a brief overview of the
pertinent history is required at this juncture. On August 27, 2009, Thomas
was charged in Milwaukee County Circuit Court with kidnapping,
second-degree sexual assault, and sexual assault of a child under sixteen
years of age. A warrant was issued the same day.
On March 10, 2010, the warden of the Illinois prison where Thomas
was serving another sentence wrote a letter to the Milwaukee County
District Attorney, informing him that Thomas had completed several
forms requesting a speedy trial under the IAD. Certified mail return
receipts show that on March 15, 2010, an employee for Information
Management Services Distribution (“IMSD”)—the mailroom service for
the Milwaukee County office building containing the district attorney’s
office—received Thomas’s speedy-trial request under the IAD. The
request was then directed to the district attorney’s office, where it was
received on March 18, 2010.

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During the course of the prosecution, the parties argued when the
IAD clock would expire. The court, having received the March 18 filedstamped IAD request from the district attorney and not the March 15
certified mail return receipt from IMSD, ruled that the clock did not begin
to run until March 18. On September 13, 2010, the date on which trial was
scheduled to begin, Thomas pled guilty to kidnapping, in violation of Wis.
Stat. § 940.31(1)(a), and second degree sexual assault of a child, in
violation of Wis. Stat. § 940.02(2). His plea would have fallen within the
IAD period only if it began to run on March 18, not March 15. He moved
in the trial court to vacate his pleas once he discovered the March 15
certified mail return receipt from IMSD, but the circuit court denied it,
ruling that IMSD could not be considered the district attorney’s agent for
receipt of IAD notices.
Thomas was sentenced on August 31, 2011, to an indeterminate
period of eighteen years of imprisonment on the kidnapping count, and to
an indeterminate period of eighteen years of imprisonment on the seconddegree-sexual-assault-of-a-child count, to be served concurrent to the
kidnapping count, but consecutive to any other sentence. The judgment of
conviction was entered that same day.
Thomas appealed on September 14, 2012, arguing that his rights
under the IAD had been violated because the IAD period began to run on
March 15, 2010. Alternatively, Thomas asserted that he should not be
responsible for the delay caused by the mail service and should be
permitted to rely on the date IMSD received his notice. The Wisconsin
Court of Appeals rejected these arguments and affirmed the conviction in
a decision issued May 29, 2013. He filed a petition for discretionary review
of these issues in the Wisconsin Supreme Court on June 28, 2013. That
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request

was

denied

on

November

26,

2013.

Thomas

sought

reconsideration of the denial of discretionary review, but the Supreme
Court denied this request on April 11, 2014. Thomas did not file a petition
for a writ of certiorari to the U.S. Supreme Court.
Next, on November 14, 2014, Thomas, proceeding pro se, filed a
motion for postconviction relief pursuant to Wis. Stat. § 974.06. The
motion raised several grounds for relief, including: (1) that Thomas was
denied the effective assistance of counsel at trial and on appeal; (2) that
Thomas’s IAD rights were violated; (3) that his trial attorney was
constitutionally ineffective for failing to contact a state official regarding
whether IMSD was authorized to receive his IAD notice; and (4) that the
State withheld material and exculpatory evidence from him—namely, the
IMSD certified mail return receipt filed-stamped March 15, 2010. (At a
hearing on the IAD issue in the trial court, the district attorney presented
only the IAD notice stamped March 18.) The trial court denied the motion
on November 21, 2014. Thomas tried unsuccessfully to commence an
appeal of this ruling by filing the motion directly in the Court of Appeals,
and then again in the Supreme Court. Neither court accepted the motion
as a proper way to lodge an appeal of the denial of postconviction relief.
Thomas filed a second postconviction motion on November 6, 2015,
this time with the assistance of a jailhouse lawyer. The motion asserted a
claim of newly discovered evidence—specifically, a letter from the
Milwaukee County Office of Corporation Counsel relating to IMSD’s
authority to accept mail for the district attorney, and entries from
signature logs in the district attorney’s office. That motion was denied on
November 17, 2015 in the trial court under State v. Escalona-Naranjo, 517
N.W.2d 157 (Wis. 1994), which bars a prisoner from raising issues in a
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successive motion for postconviction relief that could have been raised in
a prior motion. His appeals therefrom were also unsuccessful. The
Wisconsin Court of Appeals affirmed the trial court’s ruling on March 15,
2017, and the Wisconsin Supreme Court denied discretionary review on
June 12, 2017. He sought reconsideration of the Supreme Court’s decision,
but that too was denied in an order dated June 30, 2017.
Thomas filed the instant petition on November 16, 2017. His claims
mirror those raised at various times in the state proceedings. First,
Thomas says that his trial and appellate counsel were ineffective, although
he seems to think so only because they did not succeed in persuading the
state courts of the merits of his IAD claim. Second, Thomas contends that
the State withheld material and exculpatory evidence from him in the
form of the March 15 certified mail receipt from IMSD. Third, Thomas
raises a separate ineffectiveness charge against his trial counsel, claiming
that counsel should have contacted IMSD prior to his guilty plea and
asked whether the IMSD employee who actually handled Thomas’ IAD
notice was authorized to sign the certified mail receipt for it. Fourth is
Thomas’ newly discovered evidence claim, wherein he says he was
entitled to renew his IAD challenge once he received additional evidence
suggesting that the IAD notice was received in the district attorney’s office
on March 15, 2010.
As part of its Rule 4 review, the Court first considers the timeliness
of the 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
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certiorari proceedings in the U.S. Supreme Court, or if certiorari is not
sought, at the expiration of the ninety days allowed for filing for certiorari.
See Ray v. Clements, 700 F.3d 993, 1003 (7th Cir. 2012).
Here, it appears the petition is untimely. Thomas’ direct appeal
ended on November 26, 2013, the day that the Wisconsin Supreme Court
denied his request for discretionary review. His motion to reconsider that
decision did not prolong his appeal for two reasons. First, the Wisconsin
Supreme Court is not authorized to reconsider a denial of review. Hanson
v. Haines, No. 13–CV–0896, 2014 WL 4792648, at *2 (E.D. Wis. Sept. 25,
2014) (citing Archdiocese of Milwaukee v. City of Milwaukee, 284 N.W.2d 29,
30 (Wis. 1979)). Second, denial of discretionary review has no effect on the
underlying judgment. Id.; Dep’t of Banking of Neb. v. Pink, 317 U.S. 264, 266–
67 (1942). Consequently, Thomas’ 90-day period for petitioning the U.S.
Supreme Court began to run on November 26, 2013, and expired on
February 26, 2014. As another branch of this Court has observed, to hold
otherwise “would allow prisoners to effectively extend the time they have
to file a § 2254 petition in federal court by filing improper motions in state
court.” Hanson, 2014 WL 4792648, at *3. As noted above, Thomas did not
seek a writ of certiorari, so the one-year habeas clock started to run on
February 26, 2014.
His first postconviction motion was filed 261 days later, on
November 13, 2014. It was denied after a period of seven days, during
which the statute of limitations was tolled. 28 U.S.C. § 2244(d)(2) (“The
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 any period of limitation under this
subsection.”). Thomas tried to appeal, but did not do so in conformity
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with Wisconsin procedure, and so none of the time the Wisconsin
appellate courts may have considered this “appeal” can be tolled. Ray, 700
F.3d at 1003 (whether a state postconviction proceeding is “properly filed”
under Section 2244(d)(2) is governed by state procedural law). Instead, the
limitations clock restarted on November 21, 2014, the day the trial court
denied the motion.
Another 350 days elapsed before he filed his second postconviction
motion on November 6, 2015. The appeal of the denial of that motion
concluded on June 12, 2017, when the Wisconsin Supreme Court denied
Thomas’ request for discretionary review. As with his direct appeal, the
time during which the state supreme court considered his motion for
reconsideration of the denial of discretionary review did not toll the
habeas limitations period because such a request is not cognizable under
Wisconsin law and therefore was not part of the “properly filed”
postconviction motion. Hanson, 2014 WL 4792648, at *2; Ray, 700 F.3d at
1003. Thus, only the time from November 6, 2015, to June 12, 2017, must
be excluded from the limitations calculation. 28 U.S.C. § 2244(d)(2).
Finally, 157 more days passed before Thomas filed his petition in this
Court.
In total, then, 768 countable days have passed since Thomas’
conviction became final. That period is well over double the length of time
afforded under the statute for filing a habeas petition.
Though Thomas appears to have missed his deadline for filing his
petition, that does not end the Court’s analysis. There are two commonlaw exceptions that still might apply to render his petition timely: the
“actual innocence” gateway and equitable tolling. The actual innocence
gateway allows excuse of a procedural default when a petitioner
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“‘presents evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also satisfied that
the trial was free of nonharmless error.’” Gladney v. Pollard, 799 F.3d 889,
896 (7th Cir. 2015) (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)). In
other words, to be entitled to the actual innocence gateway, Thomas must
show that new evidence makes it unlikely that he would have been found
guilty. Id. at 896.
The second potential exception is “equitable tolling.” See United
States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). Equitable tolling is
“reserved for extraordinary circumstances far beyond the litigant’s control
that prevented timely filing.” Socha v. Boughton, 763 F.3d 674, 684 (7th Cir.
2014) (quotation omitted). To be entitled to equitable tolling, a petitioner
bears the burden of establishing: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way
and prevented timely filing.” Id. at 683–84; Holland v. Florida, 560 U.S. 631,
649 (2010). Though it seems unlikely that Thomas will be able to justify his
substantially delayed filing, the Court of Appeals cautions against
dismissing a case on timeliness grounds without eliciting argument from
the parties. See Gildon v. Bowen, 384 F.3d 883, 886 (7th Cir. 2004).
Nevertheless, because of the high procedural hurdle Thomas’
petition faces, the Court finds it most prudent to order briefing on the
statute of limitations issue prior to any argument on the merits of the case.
The parties will, therefore, present their positions on the timeliness of
Thomas’ petition in accordance with the following schedule:
Respondent’s opening brief:

January 29, 2018

Petitioner’s response:

February 28, 2018

Respondent’s reply:

March 14, 2018
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These dates are not subject to adjustment. Once briefing is complete, the
Court will make a final determination on the timeliness issue. If Thomas’
petition survives, the Court will complete the screening process.1
Accordingly,
IT IS ORDERED that, on or before January 29, 2018, Respondent
shall file a brief concerning the timeliness of Petitioner’s petition. On or
before February 28, 2018, Petitioner shall file a response to Respondent’s
brief. On or before March 14, 2018, Respondent shall file a reply. There
will be no extensions of time granted for the filing of these briefs.
Dated at Milwaukee, Wisconsin, this 29th day of December, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Exhaustion of state remedies and procedural default may also pose
significant problems for Thomas, since he did not succeed in pursuing his first
postconviction motion to conclusion in the Wisconsin appellate courts. Yet the
timeliness inquiry is distinct, both legally and factually, from exhaustion and
procedural default. Thus, the Court exercises its discretion to address the
limitations issue first and separately from the other potential procedural matters.
1

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