Coffee v. Kemper

Filing 4

ORDER signed by Chief Judge Pamela Pepper on 7/15/2021. Petitioner may proceed on grounds in habeas petition. Respondent to file answer or other responsive pleading within 60 days. See order for briefing schedule and allowable page lengths. (cc: all counsel and mailed to Donavinn Coffee at Racine Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DONAVINN COFFEE,
Petitioner,
Case No. 20-cv-1228-pp
v.
PAUL KEMPER,
Respondent.

ORDER SCREENING HABEAS PETITION

On August 4, 2020, the petitioner, a person who is incarcerated at
Racine Correctional Institution and is representing himself, filed a petition for
writ of habeas corpus under 28 U.S.C. §2254, challenging his 2016 conviction
in Milwaukee County Circuit Court for armed robbery, attempted armed
robbery and first-degree recklessly endangering safety. Dkt. No. 1. He has paid
the $5.00 filing fee. The court cannot say that the petitioner plainly is not
entitled to relief. This order screens the petition and orders the respondent to
answer or otherwise respond.
I.

Background
The petition refers to Wisconsin criminal case “15-CF-4965.” Dkt. No. 1

at 2. The petitioner states that on June 23, 2016, he pled guilty in Milwaukee
County Circuit Court to armed robbery, attempted armed robbery and firstdegree recklessly endangering safety, all as a party to a crime. Id.; see also
State v. Coffee, Milwaukee County Case No. 15CF4965 (available at
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https://wcca.wicourts.gov). On June 23, 2016, the court sentenced the
petitioner to thirteen years of initial confinement followed by nine years of
extended supervision. Id. at 2. The same day, the clerk entered judgment. Id.
The petitioner says that on October 17, 2017, he filed a direct appeal. Id.
at 3. A year later, the Wisconsin Court of Appeals affirmed the convictions. Id.
On July 24, 2019, the petitioner filed a petition for review in the Wisconsin
Supreme Court. Id. On January 9, 2020, the Wisconsin Supreme Court
affirmed the Court of Appeals. Id.
He filed this federal habeas petition seven months later.
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 that the
petitioner is not entitled to relief in the district court. At the screening stage,
the court expresses no view as to 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. §22554(a). If the state court denied the
petition on the merits, this court can grant the petition only if the petitioner is
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in custody as a result of: (1) “a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the United States Supreme Court, or (2) “a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in
the state court proceeding.” 28 U.S.C. §2254(d).
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 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 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).

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B.

The Petition

The petitioner asserts one ground for relief: that the circuit court violated
his right to due process when it relied on inaccurate information at sentencing.
Dkt. No. 1 at 6.
The petitioner has stated a claim generally cognizable on habeas review.
See Promotor v. Pollard, 628 F.3d 878, 888 (7th Cir. 2010) (considering on
habeas review a claim that a trial court violated due process when it relied on
inaccurate information at sentencing.) The petitioner states that he filed his
petition within the one-year limitation period and exhausted his state remedies.
At this stage the court cannot say that it plainly appears from the face of the
petition that the petitioner is not entitled to relief on his alleged grounds.
III.

Conclusion
The court ORDERS that the petitioner may proceed on the grounds in

his habeas petition.
The court ORDERS that within sixty days of the date of this order, the
respondent shall answer or otherwise respond to the petition, complying with
Rule 5 of the Rules Governing §2254 Cases, and showing cause, if any, why the
writ should not issue.
The court ORDERS that the parties must comply with the following
schedule for filing briefs on the merits of the petitioner’s claims:
(1) the petitioner has forty-five days after the respondent files the answer
to file a brief in support of his petition;

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(2) the respondent has forty-five days after the petitioner files his initial
brief to file a brief in opposition; and
(3) the petitioner has thirty days after the respondent files the opposition
brief to file a reply brief, if he chooses to file such a brief.
If, instead of filing an answer, the respondent files a dispositive motion:
(1) the respondent must include a brief and other relevant materials in
support of the motion;
(2) the petitioner then must file a brief in opposition to that motion
within forty-five days of the date the respondent files the motion;
(3) the respondent has thirty days after the petitioner files his opposition
brief to file a reply brief, if the respondent chooses to file such a brief.
The parties must submit their pleadings in time for the court to receive
them by the stated deadlines.
Under Civil Local Rule 7(f), briefs in support of or in opposition to the
habeas petition and any dispositive motions shall not exceed thirty pages, and
reply briefs may not exceed fifteen pages—not counting any statements of fact,
exhibits and affidavits. The court asks the parties to double-space any typed
documents.
Under the Memorandum of Understanding between the Wisconsin
Department of Justice (DOJ) and the U.S. District Court for the Eastern
District of Wisconsin, the court will notify the DOJ (through the Criminal
Appeals Unit Director and lead secretary) of this order via Notice of Electronic
Filing (NEF). The DOJ will inform the court within twenty-one days of the date
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of the NEF whether it will accept service on behalf of the respondent (and, if
not, the reason for not accepting service and the last known address of the
respondent). The DOJ will provide the pleadings to the respondent on whose
behalf it has agreed to accept service of process.
Dated in Milwaukee, Wisconsin this 15th day of July, 2021.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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