Thayer v. Richardson

Filing 5

ORDER signed by Chief Judge Pamela Pepper on 4/27/2021. 2 Petitioner's motion for stay and abeyance GRANTED; case STAYED pending petitioner's exhaustion of state court remedies; within 30 days of completion of state court proceedings peti tioner to file motion to reopen case, parties will retain all rights and petitioner will have benefit of original filing date. Clerk of Court to ADMINISTRATIVELY CLOSE case. (cc: all counsel and mailed to Christopher Thayer at Stanley Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

CHRISTOPHER M. THAYER,
Petitioner,
v.

Case No. 19-cv-1475-pp

REED RICHARDSON,
Respondent.

ORDER GRANTING PETITIONER’S MOTION FOR STAY AND ABEYANCE
(DKT. NO. 2), ADMINISTRATIVELY CLOSING CASE AND PRESERVING
FILING DATE

On October 9, 2019, the petitioner, an inmate at Stanley Correctional
Institution who is representing himself, filed a petition for a writ of habeas
corpus under 28 U.S.C. §2254, challenging his 2018 conviction for homicide by
intoxicated use of a vehicle and injury by intoxicated use of a vehicle. Dkt. No.
1. The petitioner also filed a “Motion for Stay and Abeyance Pursuant to Rhines
v. Weber.” Dkt. No. 2. A week later, the petitioner paid the $5.00 filing fee.
This order grants the petitioner’s motion for a stay.
I.

Background
On June 5, 2018, the petitioner pled no contest in Kenosha County

Circuit Court to one count of homicide by intoxicated use of a vehicle and one
count of injury by intoxicated use of a vehicle. Dkt. No. 1-1 at 2. Six weeks
later, the court sentenced him to ten years of initial confinement followed by
ten years of extended supervision on the homicide by intoxicated use of a
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vehicle count. Id. The court sentenced him to three years of initial confinement
followed by three years of extended supervision on the injury by intoxicated use
of a vehicle count, consecutive to the sentence for homicide by intoxicated use
of a vehicle. Id. The clerk entered judgment the same day. Id. The petitioner
did not file a direct appeal or state-court postconviction motion, and has not
filed a prior federal challenge to his convictions. Dkt. No. 1 at 3-6, 9-10.
He filed the instant petition on October 9, 2019. Dkt. No. 1.
II.

Rule 4 Screening
A.

Standard

Rule 4 of the Rules Governing Section 2254 Proceedings provides:
If it plainly appears from the face of 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.
A court allows a habeas petition to proceed unless it is clear to the court
that the petitioner is not entitled to relief in the district court. At the screening
stage, the court expresses no view of the merits of any of the petitioner’s
claims. Rather, the court reviews the petition and exhibits to determine
whether the petitioner alleges he is in custody in violation of the “Constitution
or laws or treaties of the United States.” 28 U.S.C. §2254(a). The court also
considers whether the petitioner filed within the limitations period, exhausted
his state court remedies and avoided procedural default. Generally, a state
prisoner must file his habeas petition within one year of the judgment
becoming final. 28 U.S.C. §2254(d)(1)(A). In addition, the state prisoner must
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exhaust the remedies available in the state courts before the district court may
consider the merits of his federal petition. 28 U.S.C. §2254(b)(1)(A). If the
district court discovers that the petitioner has included an unexhausted claim,
the petitioner either must return to state court to exhaust the claim or amend
his petition to present only the exhausted claims. Rose v. Lundy, 455 U.S. 509,
510 (1982).
Finally, even if a petitioner has exhausted a claim, the district court may
still be barred from considering the claim if the petitioner failed to raise the
claim in the state’s highest court in a timely fashion or in the manner
prescribed by the state’s procedural laws. See O’Sullivan v. Boerckel, 526 U.S.
838, 848 (1999); Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000)
B.

Analysis

The petitioner asserts six grounds for relief: (1) ineffective assistance of
counsel for failure to investigate, dkt. no. 1 at 6; (2) ineffective assistance of
counsel for failure to seek a change in venue, id. at 7; (3) ineffective assistance
of counsel for “not presenting all plea offers to [the petitioner] prior to the
recommendation and acceptance of the accepted plea,” id. at 8; (4) a due
process violation resulting from the trial court’s reliance on facts and evidence
not in the record at sentencing, and ineffective assistance of counsel for “failing
to correct the court’s use of such evidence/facts for the purpose of sentencing,”
id. at 9; (5) a due process violation resulting from the trial court’s failure to
recuse, dkt. no. 1-1 at 1; and (6) “[t]he trial court failed to correctly, as required
by both state and federal statute and presiding precedence accept [the
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petitioner’s] plea which supports [the petitioner’s] argument the plea was not
knowing, voluntary and intelligently entered,” id.
The petitioner has stated cognizable constitutional claims. See Trevino v.
Thaler, 569 U.S. 413 (2013) (considering an ineffective assistance of counsel
claim on habeas review); Promotor v. Pollard, 628 F.3d 878, 888 (7th Cir. 2010)
(considering on habeas review a claim that a state trial court violated due
process by relying on inaccurate information at sentencing); United States v.
Williams, 949 F.3d 1056, 1061 (7th Cir. 2020) (considering a due process claim
based on a trial court judge’s failure to recuse on habeas review); Perruquet v.
Briley, 390 F.3d 505, 512 (7th Cir. 2004) (considering a claim of trial court
error on habeas review). Jean-Paul v. Douma, 809 F.3d 354, 358-59 (7th Cir.
2015) (considering an involuntary plea claim on habeas review).
The court has concerns about the timeliness of the petition, and whether
the petitioner exhausted his state remedies. The petitioner has asked the court
to stay the case, however, while he exhausts his state remedies.
III.

Motion for Stay and Abeyance (Dkt. No. 2)
The petition states that the petitioner “was not aware of his appellate

rights, was not advised or understood his appellate rights.” Dkt. No. 1 at 7. The
petitioner says that he is now proceeding pro se and wishes to exhaust his
state remedies. Id.
On October 9, 2019, the petitioner filed a “Motion for Stay and Abeyance
Pursuant to Rhines v. Weber.” Dkt. No. 2. The motion asks this court to stay
proceedings on the habeas petition while he exhausts his claims in state court.
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Id. at 1. The petitioner states that he did not know his appeal rights, “did not
have a direct appeal proceeding, was not assigned, appointed, retained
appellate counsel or proceeded pro se. Therefore, no postconviction or appellate
proceedings have been filed in this matter.” Id. at 2.
The petitioner appears to recognize that the law requires him to give the
Wisconsin courts a full opportunity to review his claims before he may seek
federal habeas relief. Boerckel, 526 U.S. at 845. Such a “full opportunity”
“includes presenting the claims to the state’s highest court in a petition for
discretionary review.” Hicks v. Hepp, 871 F.3d 513, 530 (7th Cir. 2017)
(citing Boerckel, 526 U.S. at 845). The court can order a stay and abeyance of
an unexhausted federal habeas petition while a petitioner returns to the state
court to exhaust his state remedies. Rhines, 544 U.S. at 276-77; Dolis v.
Chambers, 454 F.3d 721, 724-25 (7th Cir. 2006) (vacating district court’s
dismissal of a petitioner’s wholly unexhausted habeas petition and remanding
with instructions for the court to consider a stay of the federal proceedings
under pre-Rhines circuit authority). “Stay and abeyance should be available
only in limited circumstances.” Rhines, 544 U.S. at 270. A district court should
grant a stay 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.” Id. at 278. The
Supreme Court has instructed district courts that they should not stay mixed
petitions “indefinitely,” and “should place reasonable time limits on a
petitioner's trip to state court and back.” Id. at 277-78.
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The petitioner argues that his lack of legal education, lack of knowledge
of his appeal rights and the circumstances of his confinement constitute good
cause to stay the case. Dkt. No. 2 at 2-3. He contends that his constitutional
claims have merit and asks the court stay the case and allow him six months
to start his proceedings in state-court. Id. at 5-6.
At this early stage, the court’s review of the petitioner’s claims reflects
that they could have merit. The court has no indication that the petitioner
requested a stay for the purpose of delay. The court will grant the petitioner’s
request to stay the federal proceedings while he exhausts his state remedies.
The court will stay and administratively close this federal case until the
petitioner has exhausted his claims in state court. The court will order that
within thirty days of the conclusion of his state court proceedings, the
petitioner must file a motion asking this court to reopen his federal case. The
court then will reopen the case, maintaining the original filing date of the
petition. At that time, the petitioner may amend his petition to clarify the
claims that he is raising and to indicate whether he's exhausted them. The
court cautions the petitioner that he should use his time in state court to
exhaust all claims that he wants to raise in this federal habeas petition. This
may require him to file different motions with different levels of the state court.
After the petitioner asks the court to reopen the case, the court will order the
respondent to answer or otherwise respond to the petition.

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IV.

Conclusion
The court GRANTS the petitioner’s motion for stay and abeyance. Dkt.

No. 2.
The court ORDERS that the federal proceedings are STAYED until the
petitioner has exhausted his state court remedies.
The court ORDERS that the Clerk of Court must ADMINISTRATIVELY
CLOSE this case. The court ORDERS that within thirty days after the
conclusion of his state court proceedings, the petitioner must file a motion in
this case (captioned “Motion to Reopen”), informing the court that the state
court proceedings are finished and asking the court to reopen the federal case.
Once it receives that motion, the court will reopen the case immediately, with
the parties retaining all rights they would have had had the case not been
closed for administrative purposes. The petitioner will have the benefit of the
original filing date.
Dated in Milwaukee, Wisconsin this 27th day of April, 2021.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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