Addison v. Eckstein

Filing 13

ORDER signed by Judge Pamela Pepper on 6/21/2018 OVERRULING 7 petitioner's objections to Judge Duffin's report and recommendation; ADOPTING 6 Judge Duffin's report and recommendation; DISMISSING case without prejudice for failure to exhaust state remedies. (cc: all counsel, via mail to Maries Addison at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MARIES D. ADDISON,
Plaintiff,
v.

Case No. 18-cv-395-pp

WARDEN SCOTT ECKSTEIN,
Defendant.

ORDER OVERRULING PETITIONER’S OBJECTIONS TO REPORT AND
RECOMMENDATION (DKT. NO. 7), ADOPTING MAGISTRATE JUDGE
DUFFIN’S RECOMMENDATION (DKT. NO. 7) AND DISMISSING PETITION
WITHOUT PREJUDICE

On March 13, 2018, the petitioner, who is representing himself, filed a
petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his
November 21, 2012, judgment of conviction in Milwaukee County Circuit Court
for multiple charges related to human trafficking and sexual assault. Dkt. No.
1. He paid the $5.00 filing fee. Two weeks later, Magistrate Judge William E.
Duffin screened the petition under Rule 4 of the Rules Governing Section 2254
Cases, and recommended that this court dismiss the petition because the
petitioner has appeals pending in the Wisconsin Court of Appeals. Dkt. No. 6.
The petitioner filed timely objections to the recommendation. Dkt. No. 7. The
court agrees with Judge Duffin’s recommendation, adopts it and dismisses the
petition.

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I.

Background
In 2011, the State of Wisconsin charged the defendant in three different

felony cases: 2011CF002881, 2011CF001079, and 2011CF001664. Dkt. No. 1
at 2. The Milwaukee County Circuit Court joined the cases, and in August of
2012, a jury convicted the defendant on several of the charged counts. See
“Verdict,” docket entry 8-28-2012, State v. Addison, Case No. 2011CF002881
(Milwaukee County Circuit Court), located at https://wcca.wiscourts.gov. On
November 16, 2012, the judge sentenced the petitioner to ninety-five years of
confinement, followed by eighty years of extended supervision. Dkt. No. 1 at 2.
The petition does not indicate when the petitioner filed his direct appeal,
but the petitioner does say that he appealed. Dkt. No. 1 at 4. The Wisconsin
Circuit Court Access Program indicates that the court of appeals extended the
petitioner’s time for filing a notice of appeal or postconviction motion multiple
times before the petitioner finally filed his notice of appeal on January 4, 2018.
See “Notice of appeal transmittal,” docket entry 1-04-2018, States v. Addison,
Case No. 2011CF002881 (Milwaukee County Circuit Court) located at
https://wcca.wiscourts.gov. WCCAP also indicates that the appeal remains
pending. Id.
The petition raises six grounds for relief: (1) denial of speedy trial rights,
dkt. no. 1 at 7-8; (2) ineffective assistance of pre-trial counsel, id. at 8-9; (3)
invalid waiver of right to counsel, id. at 9; (4) denial of right to counsel, id. at
10; (5) violation of the petitioner’s First Amendment right to practice his faith,
id. at 11; and (6) denial of his right to a fair trial, id. at 11-12.
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II.

Judge Duffin’s Recommendation (Dkt. No. 6)
Judge Duffin looked to the public records of the Wisconsin Court of

Appeals and found that the petitioner’s direct appeal of his conviction was still
pending. Dkt. No. 6 at 2. Because the appeal remains pending, and because
“[e]xhaustion of state remedies is a threshold requirement before a federal
habeas court considers the merits of the petitioner’s claims[,]” id. at 2 (citing
Day v. Mcdonough, 547 U.S. 198, 205 (2006)), Judge Duffin recommended that
this court dismiss the petition without prejudice. Dkt. No. 6 at 2.
III.

Standard of Review
Under Rule 12 of the Rules Governing Section 2254 Cases, the Federal

Rules of Civil Procedure apply to habeas cases filed under 28 U.S.C. §2254.
Under Federal Rule of Civil Procedure 72(b)(3), if a party objects to a magistrate
judge’s report and recommendation, the district court must conduct a de novo
review of any portion of the recommendation to which the party properly
objected. Fed. R. Civ. P. 72(b)(3). The district court may “accept, reject, or
modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Id.
IV.

Analysis
The petitioner’s stated reason for filing for habeas relief was “extreme

direct appeal delays.” Dkt. No. 1 at 4. In his objection to Judge Duffin’s
recommendation, the petitioner argues that he “has in fact been prejudiced due
to ‘delays’ and ‘ineffective counsel,’” thereby “render[ing] [his] direct appeal
process ineffective to protect his rights.” Dkt. No. 7 at 1. The petitioner argues
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that because the Wisconsin Court of Appeals has taken so long to decide his
appeal, this court either should grant a conditional writ (“release the prisoner
[if] the state does not decide the Petitioners appeal within a specific period”), or
“order the State to decide the appeal.” Id. at 4. The petitioner says that the
ineffective assistance of his attorney in state court “deprived him of an
opportunity to pursue a meaningful direct appeal from his conviction[.]” Id.
A person convicted in state court cannot seek relief in federal court via a
writ of habeas corpus under 28 U.S.C. §2254 until that person first exhausts
the remedies available to him in state court. 28 U.S.C. §§2254(b)(1)(A), (C). In
other words, a federal habeas court may not consider the merits of a
petitioner’s claim until that petitioner exhausts his state remedies. Day v.
McDonough, 547 U.S. 198, 205 (2006). The only exception to the exhaustion
requirement is when “(i) there is an absence of available State corrective
process; or (ii) circumstances exist that render such process ineffective to
protect the rights of the applicant.” 28 U.S.C. §§2254(b)(1)(B)(i)-(ii).
The petitioner has not argued that Wisconsin’s post-conviction
procedures are inadequate to adjudicate any of the six claims he raises in the
petition. Rather, he indicates that the circumstances in his case—all of the
delays in his appeal process—have rendered the process ineffective to protect
his rights. But the Wisconsin Court of Appeals docket, accessible at
https://wscca.wicourts.gov, shows that it was the petitioner who sought
numerous extensions of time to file a postconviction notice or notice of appeal
in the consolidated cases between March of 2015 and January 2018. State v.
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Maries D. Addison, Appeal No. 2018AP000055-CR (reflecting that the court
granted the petitioner’s requests for extensions on March 10, 2015; May 8,
2015; July 8, 2015; September 9, 2015; November 5, 2015; January 6, 2016;
February 5, 2016; April 6, 2016; June 9, 2016; August 9, 2016; October 6,
2016; November 8, 2016; January 9, 2017; February 24, 2017; April 21, 2017;
May 1, 2017; June 30, 2017; August 29, 2017; and November 30, 2017).
Granted, it was the petitioner’s lawyers—not the petitioner himself—who
filed all these motions for extensions of time. And the docket shows that the
petitioner had two different lawyers over the almost three-year period from
March 2015 through January 2018. Reading between the lines, the petitioner
is not happy that his lawyers sought all of these extensions1—he says that his
direct appeal will be ineffective in protecting his rights because (1) one of the
witnesses has died; (2) other witnesses have forgotten about key hearings; and
(3) evidence has been lost forever due to statutes of limitation on maintaining
records. Dkt. No. 7 at 2.
The court imagines that the petitioner is frustrated. But the law does not
allow the court to circumvent the exhaustion requirement because of a
petitioner’s frustration. Nor can the court conclude that it is futile for the
petitioner to continue with the appeal process. The petitioner’s lawyer has now
filed the appellate brief, and the respondent’s brief is due June 25, 2018. State

Indeed, the appellate docket shows that the petitioner moved to discharge his
most recent attorney, and that the attorney moved to withdraw. The court of
appeals denied both motions. State v. Maries D. Addison, 2018AP00055-cr,
located at https://wscca.wicourts.gov.
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v. Maries D. Addison, 2018AP00055-cr, located at https://wscca.wicourts.gov.
The issues on appeal are legal ones. If the court of appeals (or, for that matter,
the Wisconsin Supreme Court) determines that the petitioner is entitled to
relief, either his conviction will be vacated (meaning that his concerns about
old and missing evidence will be irrelevant), or the case will be remanded to the
trial court for a new trial (at which time, he can raise his concerns there). The
petitioner has not demonstrated that, even with the delays of which he
complains, the court of appeals cannot adequately address his claims. Indeed,
the “State courts are ‘equally bound to guard and protect rights secured by the
Constitution.’” Duckworth, 454 U.S. at 3-4 (quoting Ex parte Royall, 117 U.S.
241, 251 (1886)).
The petitioner has not exhausted his claims in state court, and the
futility exception to the exhaustion requirement does not apply. That means
that this court cannot consider the petitioner’s claims. The petitioner must
exhaust his remedies in state court; once he does, he can file a habeas petition
in federal court.
V.

Conclusion
The court OVERRULES the petitioner’s objections to Judge Duffin’s

report and recommendation. Dkt. No. 7.
The court ADOPTS Judge Duffin’s recommendation. Dkt. No. 6.
The court ORDERS that this case is DISMISSED WITHOUT PREJUDICE
for failure to exhaust.
The clerk will enter judgment accordingly.
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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 (30) days of the entry of
judgment. See Fed. R. of 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 thirty-day deadline. See Fed. R. App. P. 4(a)(5)(A).
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
Rule 59(e) must be filed within twenty-eight (28) days of the entry of
judgment. The court cannon extend this deadline. See Fed. R. Civ. P. 6(b)(2).
Any motion under Rule 60(b) must be filed within a reasonable time, generally
no more than one year after the entry of judgment. The court cannot extend
this deadline. See Fed. R. Civ. P. 6(b)(2).
The court expects the parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 21st day of June, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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