Schiller v. Tegels

Filing 3

SCREENING ORDER re #1 Petitioner's Petition signed by Judge J P Stadtmueller on 6/4/2024. By 7/8/2024, Petitioner to FILE an amended petition; the failure to do so will result in the denial of the petition for the failure to bring a cognizable habeas claim. See Order. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MR. FRANK SCHILLER,
Petitioner,
v.

Case No. 24-CV-591-JPS

WARDEN LIZZIE TEGELS,

ORDER

Respondent.

On May 13, 2024, Petitioner Frank Schiller (“Schiller” or
“Petitioner”), through counsel, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. ECF No. 1. Schiller paid the filing fee in full
on May 13, 2024. The Court screens his petition under Rule 4 of the Rules
Governing Section 2254 Proceedings.
1.

FACTUAL BACKGROUND
Schiller entered a no-contest plea to one count of homicide by

intoxicated use of a vehicle, second or subsequent offense, contrary to Wis.
Stat. § 940.09(1)(a). ECF No. 1 at 2. He was sentenced to a term of twentyfive years initial confinement and fifteen years extended supervision. Id.
Schiller filed a direct appeal to his judgment of conviction in the
Wisconsin Court of Appeals. Id. at 3. In that appeal, he argued that the
police violated his Fourth Amendment rights. Id. The Wisconsin Court of
Appeals affirmed the trial court’s conviction and judgment. Id. Schiller
petitioned for review to the Wisconsin Supreme Court. On February 21,
2023, the Wisconsin Supreme Court denied review. Id.

Now, Schiller seeks habeas relief on the following ground: that law
enforcement’s entry into his hospital room violated his constitutional right
to be free from unreasonable searches and seizures. Id. at 6.
2.

ANALYSIS
Rule 4 authorizes a district court to conduct an initial screening of

habeas corpus petitions and to dismiss a petition summarily where “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.” Thus, Rule 4
provides the district court the power to dismiss both those petitions that do
not state a claim upon which relief may be granted and those petitions that
are factually frivolous. See Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993).
Under Rule 4, the Court analyzes preliminary obstacles to review, including
whether the petitioner has complied with the statute of limitations,
exhausted available state remedies, avoided procedural default, and set
forth cognizable claims.
Claims for federal habeas relief under the Fourth Amendment are
generally barred, “so long as the state court granted [the petitioner] a full
and fair hearing on the claim.” Monroe v. Davis, 712 F.3d 1106, 1112–13 (7th
Cir. 2013) (citing Stone v. Powell, 428 U.S. 465 (1976)). “Establishing that the
petitioner was not granted a full and fair hearing is thus the means of
surmounting the Stone bar and opening the door to federal review of the
merits of the petitioner's Fourth Amendment claim.” Id. (citing Wallace v.
Kato, 549 U.S. 384, 395, n.5 (2007)). A defendant has had an opportunity for
full and fair litigation of a Fourth Amendment claim when “(1) he clearly
apprised the state court of his Fourth Amendment claim along with the
factual basis for that claim, (2) the state court carefully and thoroughly

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analyzed the facts, and (3) the court applied the proper constitutional case
law to those facts.” Miranda v. Leibach, 394 F.3d 984, 997 (7th Cir. 2005).
The role of a federal court on habeas review is “not to second-guess
the state court on the merits of the petitioner’s claim, but rather to assure
[itself] that the state court heard the claim, looked to the right body of case
law, and rendered an intellectually honest decision.” Monroe v. Davis, 712
F.3d 1106, 1114 (7th Cir. 2013). “It takes more than an error in the state
court’s analysis to surmount the Stone bar to collateral relief . . . .” Id. Only
if the error “betray[s] an unwillingness on the part of the [state] judiciary to
treat [the petitioner’s] claim honestly and fairly” will that error provide a
basis for a merits review of a Fourth Amendment claim in a federal habeas
case. Id.
Here, Schiller does not appear to be claiming that he did not receive
a full and fair hearing on his Fourth Amendment claim, and therefore
habeas relief would not be permissible on this ground. Along with the
petition, Schiller attached a copy of the Wisconsin Court of Appeals
decision. ECF No. 1-7. On appeal, Schiller conceded that controlling
precedent applied and that he only brought his appeal to reserve the issue
for Wisconsin Supreme Court Review. ECF No. 1-7 at 1–2. This certainly
does not sound in the state court’s unwillingness to treat petitioner’s claim
honestly and fairly.
Because it does not appear that Schiller’s ground for relief is
cognizable in federal habeas, the Court will allow him the opportunity to
amend or voluntarily dismiss the petition based on the Court’s guidance in
this Order. If Schiller brings a cognizable habeas claim, he should amend
his petition to clarify his Fourth Amendment ground. The Court will allow
Schiller to file an amended complaint on or before July 8, 2024. If Schiller
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does not file an amended petition, the Court will deny his petition for
bringing a ground not cognizable in habeas.
Accordingly,
IT IS ORDERED that on or before July 8, 2024, Petitioner shall file
an amended petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254; the failure to do so will result in the denial of the petition for the
failure to bring a cognizable habeas claim.
Dated at Milwaukee, Wisconsin, this 4th day of June, 2024.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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