Henyard vs Eplett

Filing 4

RULE 4 ORDER signed by Magistrate Judge Nancy Joseph. IT IS HEREBY ORDERED that a copy of Henyard's petition and this order shall be served upon the respondent by service upon the State of Wisconsin Attorney General. IT IS FURTHER ORDERED THAT the respondent is directed to serve and file an answer, motion, or other response to the petition, complying with Rule 5 of the Rules Governing Habeas Corpus Cases, within SIXTY (60) days of the date of this order. (See order for additional deadlines) (cc: all counsel)(asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KEITH C. HENYARD,
Petitioner,
v.

Case No. 21-CV-839

CHERYL EPLETT,
Respondent.
RULE 4 ORDER
Keith C. Henyard, who is currently incarcerated at the Oshkosh Correctional
Institution, seeks a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket
# 2.) Henyard challenges his judgment of conviction in Kenosha County Case No.
2016CF1401. (Id. at 2.) Henyard was convicted of delivery of cocaine, delivery of heroin,
possession of cocaine with intent to deliver, and possession of heroin with intent to deliver.
(Id.) Henyard was sentenced to twelve years of incarceration, followed by eleven years of
extended supervision. (Id.) Henyard alleges that his conviction and sentence are
unconstitutional.
Henyard has paid the $5.00 filing fee and his petition is ready for screening in
accordance with Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, I must
dismiss a petition summarily if “it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district court.” During this initial review, I
determine whether the petitioner has set forth cognizable constitutional or federal law claims
and exhausted available state remedies.

Henyard alleges he received ineffective assistance of trial counsel and was sentenced
by a biased judge. (Id. at 6–10.) It appears Henyard has exhausted all available state court
remedies. (Id.) As Henyard’s petition appears to set forth cognizable constitutional claims and
he appears to have exhausted his state court remedies, summary dismissal under Rule 4 is not
appropriate and the respondent will be called upon to serve and file an answer, motion, or
other response to the petition for a writ of habeas corpus.
NOW, THEREFORE, IT IS HEREBY ORDERED that a copy of Henyard’s petition
and this order shall be served upon the respondent by service upon the State of Wisconsin
Attorney General.
IT IS FURTHER ORDERED THAT the respondent is directed to serve and file an
answer, motion, or other response to the petition, complying with Rule 5 of the Rules
Governing Habeas Corpus Cases, within SIXTY (60) days of the date of this order.
IT IS FURTHER ORDERED THAT unless the respondent files a dispositive motion
in lieu of an answer, the parties shall abide by the following schedule regarding the filing of
briefs on the merits of the petitioner’s claim:
1.

The petitioner shall have forty-five (45) days following the filing of the

respondent’s answer within which to file his brief in support of his petition;
2.

The respondent shall have forty-five (45) days following the filing of the

petitioner’s brief within which to file a brief in opposition. If petitioner does not file a brief,
the respondent has forty-five (45) days from the due date of the petitioner’s brief to file his
brief; and
3.

The petitioner shall have thirty (30) days following the filing of the

respondent’s opposition brief within which to file a reply brief, if any.

2

In the event that respondent files a dispositive motion and supporting brief in lieu of
an answer, this briefing schedule will be suspended and the briefing schedule will be as
follows:
1.

The petitioner shall have forty-five (45) days following the filing of the

respondent’s dispositive motion and supporting initial brief within which to file a brief in
opposition;
2.

The respondent shall have thirty (30) days following the filing of the

petitioner’s opposition brief within which to file a reply brief, if any.
Pursuant to Civil L.R. 7(f), the following page limitations apply: briefs in support of
or in opposition to the habeas petition or a dispositive motion filed by the respondent must
not exceed thirty (30) pages and reply briefs must not exceed fifteen (15) pages, not counting
any statements of facts, exhibits, and affidavits.

Dated at Milwaukee, Wisconsin this 14th day of July, 2021.

COURT
BY THE COURT
R

________________________
________________________
__
__ _ _
JOSEPH
NANCY JOSEPH
EP
EP
United States Magistrate Judge

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