Flowers v. Hepp

Filing 4

RULE 4 ORDER signed by Magistrate Judge Nancy Joseph. IS ORDERED that a copy of Flowers' petition and this order shall be served upon the respondent by service upon the State of Wisconsin Attorney General. IT IS FURTHER ORDERED THAT the responde nt is directed to serve and file an answer, motion, or other response to the petition, complying with Rule 5 of the Rules Governing Habeas Corpus Cases, within SIXTY (60) days of the date of this order. See Order for additional deadlines. (cc: all counsel, via US mail to Petitioner)(blr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KEVIN FLOWERS,
Petitioner,
v.

Case No. 18-CV-356

RANDALL HEPP
Respondent.
RULE 4 ORDER
Kevin Flowers, who is currently incarcerated at Fox Lake Correctional Institution,
seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket # 1.) Flowers has paid
the statutory filing fee and consented to magistrate jurisdiction. Therefore, I will now screen
his complaint in accordance with Rule 4 of the Rules Governing § 2254 Cases.
Rule 4 provides:
If it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the petitioner. If the
petition is not dismissed, the judge must order the respondent to file an
answer, motion, or other response within a fixed time, or to take other
action the judge may order.
During the initial review of habeas petitions, the court generally reviews whether the
petitioner has set forth cognizable constitutional or federal law claims and exhausted
available state remedies.
Flowers raises several issues in his petition. First, Flowers argues that the court of
appeals considered a theory of the case that was never articulated to the jury. Second,

Flowers argues that the court of appeals erroneously included irrelevant evidence. Grounds
three through ten assert various forms of ineffective assistance of post-conviction counsel.
Upon review of the petition, the Court is satisfied that the ground stated by the
petitioner in the petition translates, at least colorably, into a violation of rights under the
United States Constitution. Ineffective assistance of counsel is a clear constitutional ground
for habeas relief. Strickland v. Washington, 466 U.S. 668 (1984). Flowers’ claims of the use of
improper evidence are also cognizable on habeas relief. Jackson v. Virginia, 443 U.S. 307, 324
(1979).
Flowers’ petition does not state whether or not he completely exhausted his state
court remedies under 28 U.S.C. § 2254(b)(1)(A). Under Rule 4, in order to dismiss the
petition upon review it is required that “it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court.” However, it
does not “plainly appear” within Flowers’ petition that he did not fully exhaust his claims in
state court, and thus dismissal under Rule 4 is not appropriate. Further, even if Flowers did
plainly state in his petition that his claims were not fully exhausted in state courts, there are
exceptions which, if applicable, would permit him to proceed.
I conclude that summary dismissal under Rule 4 is not appropriate because it does
not plainly appear from the “face of the petition” that the petitioner is not entitled to relief.
Consequently, the respondent will be called upon to serve and file an answer, motion, or
other response to the petition for a writ of habeas corpus.
NOW, THEREFORE, IT IS ORDERED that a copy of Flowers’ petition and this
order shall be served upon the respondent by service upon the State of Wisconsin Attorney
General.

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IT IS FURTHER ORDERED THAT the respondent is directed to serve and file an
answer, motion, or other response to the petition, complying with Rule 5 of the Rules
Governing Habeas Corpus Cases, within SIXTY (60) days of the date of this order.
IT IS FURTHER ORDERED THAT unless the respondent files a dispositive
motion in lieu of an answer, the parties shall abide by the following schedule regarding the
filing of briefs on the merits of the petitioner’s claims:
1.

The petitioner shall have forty-five (45) days following the filing of the

respondent’s answer within which to file his brief in support of his petition;
2.

The respondent shall have forty-five (45) days following the filing of the

petitioner’s initial brief within which to file a brief in opposition; and
3.

The petitioner shall have thirty (30) days following the filing of the

respondent’s opposition brief within which to file a reply brief, if any.
In the event that respondent files a dispositive motion and supporting brief in lieu of
an answer, this briefing schedule will be suspended and the briefing schedule will be as
follows:
1.

The petitioner shall have forty-five (45) days following the filing of the

respondent’s dispositive motion and supporting initial brief within which to file a brief in
opposition;
2.

The respondent shall have thirty (30) days following the filing of the

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 the respondent must

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not exceed thirty (30) pages and reply briefs must not exceed fifteen (15) pages, not counting
any statements of facts, exhibits, and affidavits.
Dated at Milwaukee, Wisconsin this 26th day of March, 2018.
BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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