Howard, Albert v. Humphries, Robert

Filing 14

ORDER granting petitioner's 13 request to reopen this case solely for the purpose of modifying the order of March 2, 2012. The order is modified to reflect that petitioner's case shall remain in abeyance until petitioner has exhausted his state court remedies with respect to his claim of ineffective assistance of appellate counsel. Signed by District Judge Barbara B. Crabb on 9/10/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ALBERT L. HOWARD,
ORDER
Petitioner,
11-cv-793-bbc
v.
ROBERT HUMPHRIES, Warden
Kettle Moraine Correctional Institution,
Respondent1 .
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On
March 2, 2012, I entered an order staying the petition to allow petitioner the opportunity
to exhaust a then-pending state court motion for post-conviction DNA testing under Wis.
Stat. § 974.07 and “any related state collateral review and postconviction proceedings.” Dkt.
# 11. Petitioner has now filed a letter to the court dated July 20, 2015, dkt. # 13, in which
he states that he exhausted his state court remedies on his DNA testing and newlydiscovered evidence motions on June 12, 2015, when the Wisconsin Supreme Court denied
his petition for review. However, he states that he is now in the process of exhausting a
claim of ineffective assistance of appellate counsel by way of a Knight petition in the
Wisconsin Court of Appeals. State v. Knight, 168 Wis. 2d 509, 520, 484 N.W. 2d 540,

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Since the date he filed his initial petition Pursuant to Rule 25

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544 (1992) (claims of ineffective assistance of counsel on direct appeal should be raised in
habeas corpus petition filed in appellate court that heard appeal). Petitioner asks two
questions: 1) whether his ineffective assistance of appellate counsel claim can be raised in
a federal habeas petition; and 2) if so, whether his federal petition will continue to be held
in abeyance while he exhausts his state court remedies with respect to that claim.
I construe petitioner’s questions as a request to reopen this case solely for the purpose
of modifying the March 2, 2012 order to permit him to exhaust state court remedies related
to a claim of ineffective assistance of appellate counsel. That request will be granted. A
claim of ineffective assistance of appellate counsel is a claim that can be raised in a federal
habeas petition. Evitts v. Lucey, 469 U.S. 387, 396 (1985) (recognizing the constitutional
right to the effective assistance of counsel on first appeal as of right). Principles of comity,
finality and federalism militate in favor of allowing petitioner to exhaust that claim before
this court adjudicates his pending habeas petition. Accordingly, the petition shall remain
in abeyance pending exhaustion of petitioner’s state court remedies with respect to his
ineffective assistance of appellate counsel claim.
Petitioner should be aware that in making this order, I have made no determination
about the merits or timeliness of the ineffective assistance claim. In the event petitioner
exhausts his state court remedies and files an amended petition that includes his newlyexhausted claims, the state will be free to challenge the claims on any ground.

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ORDER
Petitioner’s request to reopen this case solely for the purpose of modifying the order
of March 2, 2012 is GRANTED. The order is modified to reflect that petitioner’s case shall
remain in abeyance until petitioner has exhausted his state court remedies with respect to
his claim of ineffective assistance of appellate counsel.
Entered this 10th day of September, 2015.
BY THE COURT:
/s/
____________________
BARBARA B. CRABB
District Judge

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