Brown v. Boughton

Filing 21

ORDER signed by Judge J.P. Stadtmueller on 9/21/2018: GRANTING 18 Respondent's Motion to Dismiss; DENYING 12 Petitioner's Amended Petition for Writ of Habeas Corpus; DISMISSING CASE; and DENYING Certificate of Appealability. (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). Respondent argued that the new claims were both barred by the
statute of limitations and were procedurally defaulted. Id. at 2–3. Brown
declined to respond to Respondent’s brief in any fashion. (Docket #17 at
3). The Court therefore concluded that Respondent’s arguments had been
conceded and it dismissed the three new habeas claims on July 27, 2018.
Id. at 3–4.
In that same order, the Court set a briefing schedule for the
remaining claim. Id. at 4–5. Consistent with that schedule, on August 6,
2018 Respondent filed a motion to dismiss. (Docket #18). As with the three
new claims, Respondent contends in the motion that the sole remaining
habeas claim is procedurally defaulted because it was never presented to
the Wisconsin Supreme Court in a timely petition for discretionary
review. (Docket #19 at 6–7); see also (Docket #17 at 2–3). Further, because
the Wisconsin Supreme Court did not accept Brown’s untimely request for
discretionary review under the rule of First Wisconsin National Bank of
Madison v. Nicholaou, 274 N.W.2d 704, 705 (Wis. 1979), there is an adequate
and independent state law ground for the state court’s decision,
effectively foreclosing federal habeas review. (Docket #19 at 8–10); Madyun
v. Young, 852 F.2d 1029, 1035 (7th Cir. 1988); Buelow v. Dickey, 847 F.2d 420,
429 (7th Cir. 1988).

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Brown’s brief in opposition to this motion to dismiss was due no
later than September 5, 2018. (Docket #17 at 5). As before, Brown has filed
nothing and has not communicated with the Court in any fashion. He has
thus twice flouted the Court’s scheduling orders and the Court is
therefore obliged to again conclude that he 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). Further,
as with his three new habeas claims, it would have been nearly impossible
for Brown to overcome the obvious procedural default as to his sole
remaining claim. Thus, the Court will dismiss Brown’s remaining habeas
claim, and with it, the case as a whole.
Under Rule 11(a) of the Rules Governing Section 2254 Cases, “the
district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Brown must make a
“substantial showing of the denial of a constitutional right” by
establishing that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal citations omitted). In this case, no reasonable jurists could
debate whether Brown’s claims could survive the limitations bar or
procedural default. Indeed, because he has not responded to Respondent’s
arguments on these issues, it appears Brown does not debate the points
either. As a consequence, the Court is compelled to deny him a certificate
of appealability.

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Finally, the Court closes with some information about the actions
that Brown may take if he wishes to challenge the Court’s resolution of
this case. This order and the judgment to follow are final. A dissatisfied
party may appeal this Court’s decision to the Court of Appeals for the
Seventh Circuit by filing in this Court a notice of appeal within thirty days
of the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend
this deadline if a party timely requests an extension and shows good
cause or excusable neglect for not being able to meet the 30-day deadline.
Id. 4(a)(5)(A). Moreover, under certain circumstances, a party may ask this
Court to alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil Procedure
59(e) must be filed within 28 days of the entry of judgment. The Court
cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under
Federal Rule of Civil Procedure 60(b) must be filed within a reasonable
time, generally no more than one year after the entry of the judgment. The
court cannot extend this deadline. Id. A party is expected to closely review
all applicable rules and determine what, if any, further action is
appropriate in a case.
Accordingly,
IT IS ORDERED that Respondent’s motion to dismiss (Docket #18)
be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Petitioner’s amended petition for
a writ of habeas corpus (Docket #12) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED; and

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IT IS FURTHER ORDERED that a certificate of appealability be
and the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 21st day of September, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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