Brown v. Boughton

Filing 10

ORDER signed by Judge J.P. Stadtmueller on 3/20/2018 DENYING 8 Petitioner's Request for Legal Advice and for Reconsideration of the Court's 3/5/2018 Screening Order (Docket #7). (cc: all counsel, via mail to Cory D. Brown at Wisconsin Secure Program Facility)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CORY D. BROWN,
Petitioner,

Case No. 18-CV-265-JPS

v.
WARDEN BOUGHTON,
Respondent.

ORDER

Petitioner Cory D. Brown (“Brown”) has filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his conviction
and sentence were imposed in violation of the Constitution or federal law.
(Docket #3). The Court screened the petition in an order dated March 5,
2018. (Docket #7). The Court found that only one out of Brown’s three
habeas claims was fully exhausted in the Wisconsin state courts. Id. at 5–8.
As such, the Court gave Brown thirty days to choose whether to dismiss
the petition to exhaust the unexhausted claims or delete the unexhausted
claims from his petition and proceed with this action. Id. at 8–9.
The Court further found that Brown was not entitled to a stay and
abeyance in this action while he proceeded to exhaust his unexhausted
claims. Id. at 9–13. This is because Brown did not make any meaningful
effort to seek exhaustion of his unexhausted claims in the ten months
between the end of his first round of post-conviction proceedings and the
filing of this action. Id. There was, then, no good cause for Brown’s failure
to exhaust. Id.; Rhines v. Weber, 544 U.S. 269, 270 (2005).

A few days after the screening order was issued, on March 8, 2018,
Brown filed a letter with the Court. (Docket #8). In it, he makes two points.
First, he says he does not understand the choice the Court has offered him.
Id. at 1. He asks a number of questions about the choice, including how
much time he would have left to file a federal habeas petition if he
dismisses this action now. Id. at 3.
Unfortunately, the Court cannot answer this question or explain its
order further; the Court is not Brown’s lawyer and can offer him no legal
advice. Moreover, Brown is not entitled to an attorney in this civil
proceeding. He should therefore consult the relevant legal authorities and
the facts of his case to determine which of the Court’s two options is more
prudent. The Court cannot say more.
Brown’s second contention is to request reconsideration of the
Court’s decision to deny him a stay and abeyance, claiming that he has
been diligent in trying to exhaust his unexhausted claims. Id. at 1–2.
Brown explains that he first sought to gather evidence by requesting
return of his materials from his lawyer in April 2017. Id. The return was
delayed until August 2017. Id.
Brown also contacted the Wisconsin public defender’s office in a
letter dated May 9, 2017 seeking counsel, as he did not understand what
next steps to take and believed he was entitled to counsel. Id. He was not
entitled to counsel, however, and the public defender’s office did not
exercise its discretion to offer him counsel. Id. That denial was
communicated in a letter dated May 17, 2017. (Docket #8-1 at 3–4). Brown
sent the office another letter, dated December 13, 2017, requesting the
discretionary appointment of counsel, which was denied in a letter dated
January 11, 2018. Id. at 7–10.
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Finally, in October 2017 Brown requested from this Court a form
for submitting a Section 2254 habeas petition. (Docket #8 at 2). He was
confused about what it meant to exhaust his claims, so he reported that he
had not. Id. He reiterates that he believes he has done all he could to
exhaust given his confusion about what to do. See id.
Brown’s narrative does not warrant a reversal of the Court’s chosen
course. As the Court earlier explained, Brown’s confusion about the
habeas process, though lamentable, is not a reason justifying his failure to
exhaust his claims. His pro se status is simply no excuse. (Docket #7 at 11).
Moreover, Brown’s timeline is full of lengthy gaps that go unaccountedfor, such as the seven months from his receipt of evidence in August 2017
until he filed this proceeding in February 2018, or the four months he
suggests it took to draft the habeas petition.
Similarly, his misguided and unsuccessful efforts to secure
representation are of no moment. What is lacking is some effort to actually
get back into state court to pursue exhaustion of his unexhausted claims.
Indeed, Brown’s claim of ignorance on this point does not go far, for while
he may not understand how to file a post-conviction motion or what a
Knight petition is, the state public defender warned him in the January 11,
2018 letter that he had not presented his claims to the state court. He
should have known this already, but there could be no mistaking the need
to file again in state court after receiving this letter.
Consequently, the Court remains steadfast in its belief that, in view
of the necessarily limited nature of stay-and-abeyance relief, Rhines, 544
U.S. at 277, Brown has not demonstrated good cause for his failure to
exhaust his unexhausted claims. As a result, he will not be afforded a stay
and abeyance in this case. Instead, he must choose one of the two options
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the Court offered him in its screening order by the deadline stated in that
order.
IT IS ORDERED that Petitioner’s request for legal advice and for
reconsideration of the Court’s screening order (Docket #8) be and the
same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 20th day of March, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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