Brown v. Boughton

Filing 7

SCREENING ORDER signed by Judge J.P. Stadtmueller on 3/5/2018 re 3 Petition for Writ of Habeas Corpus. Within 30 days, Petitioner to FILE either: a letter seeking dismissal of this action to permit him to seek exhaustion of his unexhausted claim s in state court; or a letter indicating that he wishes to proceed only on his exhausted claim and an amended petition that does not include the unexhausted claims. See Order for further details. (cc: all counsel, via mail to Cory Brown at Wisconsin Secure Program Facility)(jm)

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

v.

Case No. 18-CV-265-JPS

WARDEN BOUGHTON,
Respondent.

1.

ORDER

INTRODUCTION
On January 19, 2018, state prisoner Cory D. Brown (“Brown”),1

proceeding pro se, filed a one-page document captioned a “motion for stay
and abeyance” pursuant to 28 U.S.C. § 2244(d). (Docket #2 at 1). The Court
denied the motion on January 25, 2018, finding that to the extent Brown
sought a simple extension of time to file a habeas petition, the Court could
not grant it without information corroborating his federal filing deadline
or supporting the application of equitable tolling. Id. at 2–3. Moreover,
because the motion contained no detail as to the facts of Brown’s
conviction or the nature of his habeas claims, it did not present a valid
“protective” habeas petition, filed to hold Brown’s place in federal court
while he exhausted his state court remedies. Id. at 3–4; Pace v. DiGuglielmo,
544 U.S. 408, 416 (2005). Consequently, the Court denied the motion and
dismissed the case. (Docket #2 at 4).
Brown filed an amended motion on February 12, 2018. Id. at 6–12.
In it, he gave additional details about the nature of his conviction,
The Court misspelled Brown’s first name in prior orders. It rectifies that
mistake here and will update its docket accordingly.
1

sentence, post-conviction proceedings, and federal habeas claims. See id.
He claimed confusion about his federal filing deadline and requested a
stay and abeyance while he completed the remaining state court
exhaustion process. See id. But in an order dated February 21, 2018, the
Court was obliged to deny this motion, too, as it lacked sufficient detail to
qualify as a protective habeas petition. See (Docket #1 at 2–4). The Court
gave Brown one more chance to file a complete habeas petition that could
serve as a protective petition. Id. at 4. It further directed that this habeas
action be opened in place of the existing miscellaneous action in which
Brown’s prior motions had been docketed. Id. at 4–5.
Unbeknownst to the Court, Brown had already filed a complete
habeas petition, using the Court’s form, which had been docketed in a
separate action by the Clerk of the Court. (Docket #3). It was signed by
Brown on February 14, 2018 and marked received by the Clerk of the
Court on February 21, 2018. Id. at 1, 13. Because the Court now has before
it a complete habeas petition necessary to proceed with screening under
Rule 4 of the Rules Governing Section 2254 Proceedings, the Court will do
so without requiring Brown to submit another copy of the petition as it
directed in its February 21, 2018 order.2
Rule 4 authorizes a district court to conduct an initial screening of
habeas corpus petitions and to dismiss a petition summarily where “it
Brown originally did not attach to his petition a copy of the relevant state
court decisions regarding his post-conviction proceedings. This is required by
the Court’s form. See (Docket #3 at 3). The Court will not direct him to re-submit
the petition, however, as it was able to locate the relevant decision from the
Wisconsin Court of Appeals in the Westlaw database. See State v. Brown,
2016AP976–CRNM, 2017 WL 689685 (Wis. Ct. App. Feb. 20, 2017). Moreover, on
February 28, 2018, Brown submitted a batch of records relating to his state
conviction and post-conviction proceedings, within which is found the relevant
state court decisions. See (Docket #6-1).
2

Page 2 of 14

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.
2.

BACKGROUND
On October 16, 2013, Brown was found guilty by a jury of repeated

sexual assault of a child and incest with a child, in Milwaukee County
Circuit Court Case No. 2013CF1897. The charges arose from Brown’s
repeated sexual assaults against his biological daughter, A.B., on various
occasions before her tenth birthday. He was sentenced to two concurrent
terms of forty years, each with twenty-five years of initial confinement
and fifteen years of extended supervision.
He filed a notice of intent to pursue post-conviction relief on
October 18, 2013. His post-conviction motion was not filed until a year
later, on October 15, 2014. The motion was denied in the trial court on
October 22, 2014. On December 19, 2014, Brown’s appellate and postconviction attorney filed a no-merit report regarding his appeal, but the
state appellate court directed counsel to consider several other potentially
pertinent issues. Upon further consideration, counsel determined that
there were in fact several meritorious issues for appeal. The Court of
Appeals granted counsel leave to dismiss the no-merit report and file a
new post-conviction motion.

Page 3 of 14

That motion was denied by the trial court on December 3, 2015.
Counsel again filed a no-merit report in the Court of Appeals. Brown did
not oppose that report. On February 20, 2017, the Wisconsin Court of
Appeals issued an order affirming Brown’s conviction and rejecting all of
the myriad ground for relief raised in his two post-conviction motions. See
Brown, 2017 WL 689685. On April 6, 2017, the Wisconsin Supreme Court
declined to exercise discretionary review over that decision, as Brown had
not timely sought such review and the period for seeking it cannot be
enlarged. See Wis. Stat. Rule 808.10(1); First Wis. Nat’l Bank of Madison v.
Nicholaou, 274 N.W.2d 704, 706 (Wis. 1979).
3.

ANALYSIS
3.1

Statute of Limitations

As part of the screening process, the Court will first consider the
timeliness of Brown’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 United States
Supreme Court, or if certiorari is not sought, at the expiration of the ninety
days allowed for filing for certiorari. Ray v. Clements, 700 F.3d 993, 1003
(7th Cir. 2012).
Here, it appears that Brown’s petition is timely. He timely initiated
his appeal and post-conviction proceedings after sentencing. The
Wisconsin Court of Appeals issued its final decision on February 20, 2017.
Brown did not seek discretionary review in the Wisconsin Supreme Court
within thirty days as required by Wisconsin law. See Wis. Stat. Rule
Page 4 of 14

808.10(1). As a result, his judgment became final on March 20, 2017, the
date when his time for seeking review with the State’s highest court
expired. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The instant petition
was submitted on February 14, 2018, less than one year after his judgment
became final. Thus, it does not appear that the petition is barred by the
statute of limitations.
3.2

Exhaustion of State Court Remedies

Next, the Court analyzes whether Brown fully exhausted his state
court remedies as to his claims in this proceeding. A district court may not
address claims raised in a 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 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”). A petitioner exhausts his 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).
3.2.1

Brown Has Not Exhausted All of His Habeas Claims

Brown raises three claims in this proceeding. First, Brown
complains that his due-process rights were violated when his initial
Page 5 of 14

appearance did not occur until nearly a week after he was taken into
custody. (Docket #3 at 6–7). Moreover, the initial appearance allegedly did
not include a required warning about the mandatory minimum sentence
Brown faced. Id. Second, Brown argues that he received ineffective
assistance of counsel because he fired his trial counsel in May 2013 but the
lawyer persisted in representing him before and during trial. Id. at 7.
Third, Brown contends that he has a history of mental health problems
and that his attorney was ineffective for failing to request a competency
evaluation in the trial court. Id. at 8.3
Among these three claims, it appears that Brown has only
exhausted his third ground for relief. Confusingly, Brown concedes that
that he has not exhausted any of his grounds for relief. (Docket #3 at 6–8).
His excuse is that his appellate counsel was ineffective for failing to
There are two noteworthy aspects of Brown’s claims for relief. First, all of
Brown’s claims sound fundamentally in ineffective assistance of counsel under
the Sixth Amendment. His second and third grounds for relief are framed this
way expressly, and his first ground, although it does not reference the Sixth
Amendment, is necessarily predicated on counsel’s ineffectiveness. The first
ground suggests potential violations of Gerstein v. Pugh, 420 U.S. 103, 126 (1975),
and County of Riverside v. McLaughlin, 500 U.S. 44 (1991), as well as Brown’s due
process rights attendant upon his initial appearance proceedings. However, such
violations standing alone cannot form a basis for habeas relief. See United States v.
Daniels, 64 F.3d 311, 314 (7th Cir. 1995) (“A failure to conduct a proper Gerstein
hearing or even a refusal to conduct one does not invalidate an otherwise valid
conviction.”). Instead, on habeas review Brown must present a Sixth Amendment
argument that counsel was ineffective for failing to raise such issues in the trial
court. See Goins v. Lane, 787 F.2d 248, 252 (7th Cir. 1986). Thus, when properly
considered, even Brown’s first ground for relief is at its core a claim of ineffective
assistance of trial counsel.
3

Second, Brown submits that “new evidence” forms a fourth ground for
relief, but this evidence only goes to support his first three grounds. (Docket #3 at
9). The existence of new evidence is generally not an independent ground for
habeas relief. Rather, it can only be considered within the framework of Brown’s
alleged constitutional violations as described in his other three grounds.

Page 6 of 14

recognize these issues and raise them during post-conviction proceedings.
Id.
Brown is correct about his failure to exhaust except as to his third
ground, which alleges trial counsel’s ineffectiveness for failing to request a
competency hearing. The Wisconsin Court of Appeals expressly
considered and rejected this argument during Brown’s post-conviction
proceedings. Brown, 2017 WL 689685, at *4. Thus, Brown’s third ground
has been fully exhausted.
This is likely true even though Brown now presents “new”
evidence of his incapacity that was never given to the state courts. For the
first time in any proceeding, Brown has submitted an affidavit by his
brother, Leonard Brown, “on behalf of himself and family and other
friends” who are all willing to testify about Brown’s mental state before,
during, and after his trial. (Docket #3-2 at 8). In his affidavit, Leonard
avers that he is “positive that [Brown] was not mentally stable to stand
trial during his trial in which he was convicted.” Id. Attached to the
affidavit is a letter, purportedly drafted by Brown’s family and friends but
signed by no one, which describes the writer’s view of Brown’s
deteriorating mental state. Id. at 9. The letter and affidavit are dated in
November 2017, showing they were drafted well after the close of Brown’s
post-conviction proceedings in early 2017. Id. at 9–10.
However, new evidence does not always equate with a failure to
exhaust. Instead, the exhaustion requirement is satisfied if petitioner has
fairly “presented the substance of his claim to the state courts.” See
Vasquez v. Hillery, 474 U.S. 254, 258 (1986). If new or additional facts
proffered to the federal court do not fundamentally alter the claim or
significantly strengthen the relevant evidence, they are not a barrier to
Page 7 of 14

exhaustion. See Cruz v. Warden of Dwight Corr. Ctr., 907 F.2d 665, 669 (7th
Cir. 1990); Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003). In Brown’s
case, it is not clear that his family members’ statements add much to the
incapacity equation, as they are not mental health experts, and their views
certainly to do vary the underlying legal theory passed upon by the state
court. Thus, although the Court does not foreclose Respondent from
arguing that this new evidence raises an exhaustion problem, it finds that
dismissal at the screening stage is unwarranted.
3.2.2

Brown’s Mixed Petition Does Not Warrant a Stay
and Abeyance

As explained above, only one out of Brown’s three habeas claims
has been properly exhausted. If a federal habeas petition contains
exhausted and unexhausted claims, called a “mixed” petition, the district
court may be required to dismiss the entire petition and leave the
petitioner the choice of either returning to state court to exhaust the
unexhausted claims or amending the petition to present only exhausted
claims. See Rose v. Lundy, 455 U.S. 509, 510 (1982). Because Brown presents
a “mixed” petition, the Court must give him that choice. He can either: (1)
dismiss this petition in its entirety in order to exhaust his unexhausted
claims in state court; or (2) elect to proceed on only the exhausted claim
described above. If he dismisses the unexhausted claims, then the Court
will be able to consider only his exhausted claim.
If Brown elects option (2) 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. If Brown elects option (1) and seeks to dismiss this
Page 8 of 14

action in its entirety so that he may exhaust his unexhausted claims in
state court, he may notify the Court of that decision by letter. The Court
hereby warns Brown 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). Similarly, if he dismisses his petition to
exhaust the unexhausted claims, he will run the risk that the one-year
statute of limitations will expire before he returns to federal court. See id. §
2244(d).4 Whichever course of action Brown elects to take, the Court will
require him to file his amended petition or letter as described herein
within thirty (30) days of the entry of this Order.
In some cases, the Court gives a petitioner presenting a mixed
petition the option to move for a stay and abeyance to allow him to return
to state court to exhaust his unexhausted claims. Under Rhines v. Weber,
544 U.S. 269, 278 (2005), the Court should grant a stay and abeyance 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.” That seems
to be what Brown wants in this case, given that he readily admits his
failure to exhaust and his first two submissions purported to be
“protective” habeas petitions.
But Brown has not come close to demonstrating that good cause
excuses his failure to exhaust, and so the Court will not leave him the

Brown’s one-year limitations period does not expire until, at earliest,
March 20, 2018, as noted above. Because Brown could still move expeditiously to
pursue state post-conviction relief and toll the federal limitations period, see 28
U.S.C. § 2244(d)(2), the Court’s ruling does not “effectively end any chance at
federal habeas review” by dismissing the petition at a time when it is too late to
re-file, Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008).
4

Page 9 of 14

option of a stay and abeyance. Requiring a showing of good cause before
entertaining a stay is critical because staying a federal habeas petition: (1)
frustrates the Antiterrorism and Effective Death Penalty Act of 1996’s
(“AEDPA”) “objective of encouraging finality of state court judgments by
allowing a petitioner to delay the resolution of the federal proceedings”;
and (2) “undermines AEDPA’s goal of streamlining federal habeas
proceedings by decreasing a petitioner’s incentive to exhaust all his
claims.” Id. at 270. There has been little development in the case law as to
what constitutes good cause for a failure to exhaust. See Wilson v. Thurmer,
No. 08-cv-285-bbc, 2008 WL 4762053, at *5 (W.D. Wis. Oct. 29, 2008).
Brown contends that his failure to exhaust his first and second
claims can be attributed to his appellate lawyer, who seems to have either
failed to realize that the claims were important or simply refused to
present them. Her actions do not excuse his failure to exhaust, however,
even if one assumes that ineffective assistance of appellate counsel can
constitute good cause under Rhines. See id. Brown knew that his postconviction proceedings were concluded no later than April 2017, when the
Wisconsin Supreme Court rejected his application for discretionary
review. He has done nothing in the ten months since then to pursue
exhaustion of his unexhausted grounds.
Wisconsin law permits prisoners like Brown to file successive postconviction motions, so long as there was good cause for not raising
grounds that might have been raised earlier. Id.; State v. Escalona-Naranjo,
517 N.W.2d 157, 162 (Wis. 1992); Wis. Stat. § 974.06(4). And ineffective
assistance of appellate counsel may provide a sufficient reason for not
raising an issue on direct appeal. See State v. Knight, 484 N.W.2d 540 (Wis.
1992). However, Brown has never presented a claim to the state courts
Page 10 of 14

that his appellate counsel was ineffective. Brown may still raise this claim
in state court by filing a Knight petition. The fact that the state courts are
not likely to rule in his favor, either on a successive post-conviction
motion or a supporting Knight petition, does not mean that the exhaustion
requirement can be dispensed with. Cawley v. DeTella, 71 F.3d 691, 696 (7th
Cir. 1995); White v. Peters, 990 F.2d 338, 342 (7th Cir. 1993).
In the nearly one-year timespan between the end of his postconviction proceedings and the filing of this federal petition, Brown has
filed neither a successive post-conviction motion raising his trial counsel’s
ineffectiveness nor a Knight petition raising his appellate counsel’s failure
to assert those ineffectiveness issues. He gives no reason at all for his
failure. His pro se status is no excuse. Smith v. Kemper, Case No. 17-cv-434pp, 2018 WL 987250, at *4 (E.D. Wis. Feb. 20, 2018); Yeoman v. Pollard, 875
F.3d 832, 838 (7th Cir. 2017). His dilatoriness in pursuing these
unexhausted claims, coupled with the Supreme Court’s admonition that
stay and abeyance “should be available only in limited circumstances,”
convinces the Court that no stay and abeyance should be permitted in this
case. Rhines, 544 U.S. at 277.
In attempting to frame his filings as a “protective” habeas petition,
Brown relies upon his confusion about his federal filing deadline as a
reason for stay and abeyance. See (Docket #2 at 1, 6). His argument rests
on a misreading of the Supreme Court’s decision in Pace, 544 U.S. 408. As
the Seventh Circuit in Yeoman explained:
The Pace Court addressed the possible plight of a petitioner,
trying in good faith to exhaust state remedies, who might
litigate in state court for years only to find out that his claim
was never “properly filed,” and thus his federal habeas
petition is time-barred. In order to avoid that predicament,
Page 11 of 14

the Supreme Court suggested that a petitioner seeking state
court post-conviction relief could also file a “protective”
petition in federal court and ask the federal court to stay and
abey federal habeas proceedings until state remedies were
exhausted. Pace, 544 U.S. at 416, 125 S. Ct. 1807. Citing
Rhines, the Court said that a “petitioner’s reasonable
confusion about whether a state filing would be timely will
ordinarily constitute ‘good cause’ for him to file in federal
court.” Pace, 544 U.S. at 416–17, 125 S. Ct. 1807 (citing Rhines,
544 U.S. at 278, 125 S. Ct. 1528 for the proposition that if the
petitioner had good cause for his failure to exhaust, if his
unexhausted claims are potentially meritorious, and if there
is no indication that the petitioner engaged in intentionally
dilatory tactics, then the district court likely “should stay,
rather than dismiss, the mixed petition”). Pace by its own
terms applies to petitioners, “trying in good faith to exhaust
state remedies.” 544 U.S. at 416, 125 S. Ct. 1807.
Yeoman, 875 F.3d at 838–39. In Yeoman, the Seventh Circuit concluded that
the reasoning of Pace did not extend to a petitioner who made a strategic
decision not to present all his claims to the state court. Id. Unlike in Pace,
the Yeoman petitioner did not find himself running up against his federal
filing deadline while in the midst of the exhaustion process. Id.
Brown’s circumstances are analogous to those in Yeoman. His postconviction proceedings ended nearly a year ago and he took no further
action to exhaust his unexhausted claims. He is not seeking to stick his
foot in the federal court’s door while he currently pursues exhaustion of
his claims; he simply has not started the exhaustion process at all despite
ample opportunity to do so. Consequently, neither Pace nor any other
pertinent authority suggest that a stay and abeyance is appropriate here.
In sum, then, Brown has exhausted only his third ground for relief
and he is not entitled to a stay and abeyance to complete exhaustion as to
the other two grounds. He must either dismiss this petition entirely to
Page 12 of 14

exhaust his unexhausted claims, or he must delete those unexhausted
claims from his petition and proceed only on the exhausted claim.
3.3

Procedural Default

Having determined that a stay and abeyance cannot be considered
in Brown’s case, the Court returns to the remaining elements of the
screening process. It next reviews Brown’s petition 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). 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.
O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Thomas v. McCaughtry, 201
F.3d 995, 1000 (7th Cir. 2000). Here, on the record before the Court, is it
does not appear that Brown has procedurally defaulted on his properly
exhausted claim.
3.4

Frivolous Claims

The Court concludes its Rule 4 review by screening for patently
frivolous claims in Brown’s petition. Ray, 700 F.3d at 996 n.1. Without
expressing any opinion as to the potential merit of Brown’s properly
exhausted claim, it does not plainly appear that it is frivolous.
Accordingly,
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 to permit him to seek exhaustion of his unexhausted claims in
state court; or (2) file a letter indicating that he wishes to proceed only on
Page 13 of 14

his exhausted claim and file an amended petition that does not include the
unexhausted claims.
Dated at Milwaukee, Wisconsin, this 5th day of March, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 14 of 14