Brown v. Boughton

Filing 17

ORDER signed by Judge J.P. Stadtmueller on 7/27/2018. Grounds One, Three, and Four of 12 Petitioner's Amended Petition for Writ of Habeas Corpus are DISMISSED as untimely and procedurally defaulted. Parties to PROCEED in accordance with the f ollowing briefing schedule as to Ground Two of Petitioner's Amended Petition. Within 30 days, Respondent to FILE a motion to dismiss or answer Petitioner's Amended Petition. IF RESPONDENT FILES ANSWER, briefing to proceed as follows: Petit ioner's brief in support of his Petition is due within 60 days of filing of Respondent's answer; Respondent's opposition brief is due within 60 days of service of Petitioner's brief or 120 days of this Order if Petitioner does not file a brief; Petitioner's reply is due within 30 days of filing of Respondent's brief. IF RESPONDENT FILES MOTION, briefing to proceed as follows: Petitioner's brief in opposition is due within 30 days of filing of Respondent's motion; Respondent's reply is due within 15 days of filing of Petitioner's brief. Civil L. R. 7(f) governs page limitations. See Order for further details. (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”) 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 his constitutional rights.
(Docket #3). The Court screened that 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 instructed Brown to choose whether to dismiss the
entire petition to exhaust the unexhausted claims or delete the
unexhausted claims and proceed only on the exhausted claim. Id. at 8–9.
Brown filed a letter and an amended petition on April 4, 2018.
(Docket #11, #12). In the letter, Brown stated that he wished to proceed
only on his exhausted claim—namely, that his trial attorney was
constitutionally ineffective for failing to seek a court-ordered mental
health evaluation. (Docket #11 at 1). Yet in the amended petition
accompanying his letter, Brown included not only this claim but three
brand-new ones. (Docket #12 at 6–9). The Court screened those new claims
in an order dated April 17, 2018, finding that all three new claims ran

afoul of the one-year statute of limitations for Section 2254 claims. (Docket
#13 at 3–5). The Court afforded the parties an opportunity to brief the
timeliness issue before proceeding to the merits on any of the four claims
in the amended petition. Id.
In accordance with the Court’s briefing schedule, Respondent filed
a brief on May 21, 2018, addressing Brown’s three new claims. (Docket
#16). First, says Respondent, the claims are untimely and are not
sufficiently closely related to Brown’s original claim so as to relate back to
the date the original petition was filed. Id. at 9–12. Nor, in Respondent’s
view, could Brown qualify for equitable tolling, as it does not appear that
any extraordinary circumstance outside his control prevented him from
timely asserting the claims. Id. at 12–14; Socha v. Boughton, 763 F.3d 674,
683 (7th Cir. 2014). Further, there was no evidence to support a claim of
actual innocence, another avenue to escape the limitations bar. (Docket
#16 at 13–14); Gladney v. Pollard, 799 F.3d 889, 895–96 (7th Cir. 2015).
Second, Respondent contends that Brown’s new habeas claims are
procedurally defaulted. (Docket #16 at 4–6). According to the state court
record, on February 20, 2017, the Wisconsin Court of Appeals affirmed
Brown’s convictions, accepted his appellate counsel’s no-merit report, and
relieved his counsel of further representation of Brown. (Docket #16-7). On
April 3, 2017, Brown filed a letter seeking an extension of time to file a
petition for review in the Wisconsin Supreme Court. (Docket #16-8). The
court denied that request, noting that the 30-day period for filing a
petition for review cannot be enlarged and that Brown’s letter was filed
after that deadline had expired. (Docket #16-9). Brown never filed a
petition for review.

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Brown thus never presented his federal habeas claims to the
Wisconsin Supreme Court. (Docket #16 at 5); Moore v. Casperson, 345 F.3d
474, 484–85 (7th Cir. 2003). Moreover, says Respondent, Brown cannot
now raise them, as Wisconsin law precludes a successive post-conviction
motion asserting grounds that could have been raised in a prior motion.
(Docket #16 at 6). Finally, Respondent argues that the Wisconsin Supreme
Court disposed of Brown’s habeas claims on an adequate and
independent state law ground—the untimeliness of his petition for
review—which effectively precludes habeas review in federal court. Id. at
7–9; Madyun v. Young, 852 F.2d 1029, 1035 (7th Cir. 1988); Buelow v. Dickey,
847 F.2d 420, 429 (7th Cir. 1988).
Brown had until July 2, 2018 to file a response to Respondent’s brief
on his three new claims. (Docket #13 at 5). The Court warned both parties
in its screening order that there would be “no extensions of time granted
for the filing of these briefs.” Id. at 6. Brown did not heed the warning; he
has filed nothing in this matter since his letter and amended petition of
April 4. Because the deadline set by the Court to address Respondent’s
contentions has long since passed, the Court finds that Brown has
conceded all of Respondent’s arguments. See Bonte v. U.S. Bank, N.A., 624
F.3d 461, 466 (7th Cir. 2010); Perotti v. Holt, 483 F. App’x 272, 275 (7th Cir.
2012).
Moreover, it would be highly unlikely that Brown could overcome
the numerous obstacles standing between him and a merits review of his
three new habeas claims, even had he timely filed a response brief.
Respondent’s arguments concerning procedural default and timeliness
appear well-founded in the law and the record. Thus, the Court will

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dismiss Brown’s three new habeas claims and order further proceedings
as to his one remaining claim.
Accordingly,
IT IS ORDERED that Grounds One, Three, and Four of Petitioner’s
amended petition for a writ of habeas corpus (Docket #12) be and the
same are hereby DISMISSED as untimely and procedurally defaulted;
IT IS FURTHER ORDERED that the parties shall proceed in
accordance with the following schedule with respect to Petitioner’s sole
remaining claim, Ground Two of his amended petition (Docket #12 at 7–
8):
1.

Within thirty (30) days of entry of this Order, Respondent

shall file either an appropriate motion seeking dismissal of this action or
answer the amended petition, complying with Rule 5 of the Rules
Governing Section 2254 Cases, and showing cause, if any, why the writ
should not issue; and
2.

If Respondent files an answer, then the parties should abide

by the following briefing schedule:
a.

Petitioner shall have sixty (60) days after the filing of

Respondent’s answer within which to file a brief in support of his
petition, providing reasons why the writ of habeas corpus should
be issued. Petitioner is reminded that, in accordance with 28 U.S.C.
§ 2248, unless he disputes allegations made by Respondent in his
answer or motion to dismiss, those allegations “shall be accepted as
true except to the extent that the judge finds from the evidence that
they are not true.”
b.

Respondent shall file an opposition brief, with

reasons why the writ of habeas corpus should not be issued, within
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sixty (60) days of service of Petitioner’s brief, or within one
hundred twenty (120) days from the date of this Order if no brief is
filed by Petitioner.
c.

Petitioner may then file a reply brief, if he wishes to

do so, within thirty (30) days after Respondent has filed a response
brief.
3.

If Respondent files a motion in lieu of an answer, then the

parties should abide by the following briefing schedule:
a.

Petitioner shall have thirty (30) days following the

filing of Respondent’s dispositive motion and accompanying brief
within which to file a brief in opposition to that motion.
b.

Respondent shall have fifteen (15) days following the

filing of Petitioner’s opposition brief within which to file a reply
brief, if any.
Pursuant to Civil L. R. 7(f), the following page limitations apply:
briefs in support of or in opposition to the habeas petition or a dispositive
motion filed by Respondent must not exceed thirty pages and reply briefs
must not exceed fifteen pages, not counting any caption, cover page, table
of contents, table of authorities, and/or signature block; and
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing
Program, the petitioner shall submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the Court.1 If the
petitioner is no longer incarcerated at a Prisoner E-Filing institution, he
will be required to submit all correspondence and legal material to:
The Prisoner E-Filing Program is mandatory for all inmates of Columbia
Correctional Institution, Dodge Correctional Institution, Green Bay Correctional
Institution, Oshkosh Correctional Institution, Waupun Correctional Institution,
and Wisconsin Secure Program Facility.
1

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Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S
CHAMBERS. It will only delay the processing of the matter.
The parties must notify the Clerk of Court of any change of
address. Failure to do so could result in orders or other information not
being timely delivered, thus affecting the legal rights of the parties.
Because Petitioner’s filings will be electronically scanned and
entered on the docket upon receipt by the Clerk of the Court, Petitioner
need not mail to counsel for Respondent copies of documents submitted
to the Court.
Dated at Milwaukee, Wisconsin, this 27th day of July, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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