Muniz-Munoz v. Pollard

Filing 13

ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that the petitioner's 3 and 8 Motion to Stay is GRANTED. IT IS FURTHER ORDERED that this case is closed for administrative purposes during the stay. IT IS FURTHER ORDERED that bo th the petitioner and the respondent must provide the Court with an update on the status of the state court proceedings ninety (90) days from the date of this Order. IT IS FURTHER ORDERED that following the conclusion of his state court proceedings, Muniz-Munoz must move to reopen this habeas case within thirty (30) days. Failure to file a motion to reopen within thirty (30) days as directed above may provide cause for this case to remain closed. (cc: all counsel, via US mail to Petitioner) (blr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MIGUEL MUNIZ-MUNOZ,
Petitioner,
v.

Case No. 18-CV-729

WILLIAM POLLARD,
Respondent.
ORDER GRANTING STAY AND ABEYANCE
Petitioner Miguel Muniz-Munoz filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 on May 10, 2018. (Habeas Petition, Docket #1.) Muniz-Munoz is currently serving
a life sentence following his conviction for first-degree intentional homicide and first-degree
recklessly endangering safety. (Id. at 2.)
In his petition, Muniz-Munoz raises four grounds for relief. In ground one, Muniz-Munoz
alleges that his right to a fair trial was violated by jurors sleeping during his trial. (Docket # 1-1 at
1.) In ground two, Muniz-Munoz alleges that his Sixth Amendment right to confrontation was
violated when the state did not produce the doctor who performed the victim’s autopsy for crossexamination. (Id.) In ground three, Muniz-Munoz alleges that his due process rights were violated
when the court refused to give a jury instruction on unrecorded interrogations. And in ground four,
Muniz-Munoz alleges that the court violated his rights by failing to grant a discovery motion. I am
satisfied that the grounds stated by Muniz-Munoz in the petition translate, at least colorably, into
violations of rights under the United States Constitution. Further, from the face of the petition, it

appears that Muniz-Munoz exhausted his available state remedies as to these four claims. (Docket
# 1-1 at 6-21.)
However, Muniz-Munoz has also filed a motion to stay his habeas petition and hold it in
abeyance as he is currently pursuing a Wis. Stat. § 974.06 motion in Milwaukee County Circuit
Court. (Docket # 3, Docket # 8.) In Muniz-Munoz’s Wis. Stat. § 974.06 motion, he now raises the
issues of ineffective assistance of trial and post-conviction counsel. (Docket # 1-1 at 22-26.)
Although Muniz-Munoz has not specifically raised the ineffective assistance of counsel claims
in his petition, it appears that he intends to include them in his petition. Thus, Muniz-Munoz’s
petition is a “mixed petition,” meaning it contains both exhausted and unexhausted claims.
Generally speaking, the court cannot adjudicate a mixed petition. See Rose v. Lundy, 455 U.S. 509
(1982). However, the Supreme Court has stated that it would be an abuse of discretion to deny a stay
and to dismiss a mixed petition if the petitioner has “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.” Rhines v. Weber, 544 U.S. 269, 278 (2005). Although the
Supreme Court did not define “good cause” and has only offered the suggestion that “a petitioner’s
reasonable confusion about whether a state filing would be timely” would constitute good cause, Pace
v. DiGuglielmo, 544 U.S. 408, 416 (2005), the petitioner is required to offer some reason for his failure
to exhaust, Rhines, 544 U.S. at 277-78.
Muniz-Munoz states that his ineffective assistance of trial/post-conviction counsel claim is
unexhausted because his post-conviction counsel refused to raise it. (Docket # 8.) Because ineffective
assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial may
provide cause for a procedural default, see Martinez v. Ryan, 566 U.S. 1, 9 (2012), and because the

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respondent does not object to the stay (Docket # 12), I will grant Muniz-Munoz’s motion to stay and
hold his petition in abeyance while he exhausts his state court remedies.
NOW, THEREFORE, IT IS HEREBY ORDERED that the petitioner’s request to stay and
hold in abeyance (Docket # 3 and Docket # 8) is GRANTED.
IT IS FURTHER ORDERED that this case is closed for administrative purposes during the
stay.
IT IS FURTHER ORDERED that both the petitioner and the respondent must provide the
Court with an update on the status of the state court proceedings ninety (90) days from the date of
this Order.
IT IS FURTHER ORDERED that following the conclusion of his state court proceedings,
Muniz-Munoz must move to reopen this habeas case within thirty (30) days. Failure to file a motion
to reopen within thirty (30) days as directed above may provide cause for this case to remain closed.

Dated at Milwaukee, Wisconsin this 27th day of June, 2018.
BY THE COURT:
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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