Torres v. Radtke

Filing 2

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 9/17/2019. 1 Motion to Stay Habeas and Return to Circuit Court filed by Dorian M. Torres DENIED. (cc: all counsel, via mail to Dorian Torres at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DORIAN M. TORRES,
Petitioner,
v.

Case No. 19-mc-31-pp

DYLAN RADTKE,
Respondent.

ORDER DENYING MOTION TO STAY HABEAS AND RETURN TO CIRCUIT
COURT (DKT. NO. 1) AND DISMISSING CASE

On August 13, 2019 the court received a “Motion to Stay Habeas and
Return to Circuit Court to Initiate State Court Proceedings” from Dorian M.
Torres. Dkt. No. 1. Because Mr. Torres did not have an open case before the
court, the Clerk of Court opened a miscellaneous case and assigned that case
to this court. Id.
Mr. Torres’s motion askes the court to “stay habeas proceedings, and
return to Sheboygan County Circuit Court to initiate state proceedings
pursuant to Wisconsin state statute 974.06.” Id. Mr. Torres states that the
purpose of his motion is to “exhaust state court remedies on issues that were
not raised by appellate counsel.” Id.
A person in state custody has one year to file a petition for habeas corpus
review in federal court, and that one year begins to “run from . . . the date on
which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. §2244(d)(1)(A). A
federal court cannot “extend” that one-year time limit. The question is when
the one-year time starts to run, and that depends on what actions the person
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has taken in his state case. There are cases that discuss when a judgment
becomes “final,” and that issue can be complicated. It is true that the federal
habeas statute has “tolling” provisions that exempt certain periods of time from
counting toward the one-year limitations period. For example, 28 U.S.C.
§2244(d)(2) provides that the “time during which a properly filed application for
State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of
limitation.” Until Mr. Torres files a habeas petition, however, the court will not
be able to tell whether any time has been “tolled” or whether his petition would
be barred by the statute of limitations.
The court does not have the authority to extend the deadline for Mr.
Torres to file his petition. It can advise him only to conduct research into the
question of whether his state conviction has become “final” and, if so, when;
and then to make sure that he files his habeas petition within one year of the
date the conviction became, or becomes, final.
The court DENIES Mr. Torres’s motion to stay habeas and return to
Circuit Court. Dkt. No. 1.
The court ORDERS that this case is DISMISSED.
Dated in Milwaukee, Wisconsin this 17th day of September, 2019.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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