Thompson, Rodell et al v. Foster, Brian

Filing 27

ORDER denying petitioner's 26 Motion to Stay. Signed by Magistrate Judge Stephen L. Crocker on 12/26/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
________________________________________________________________________________________
RODELL THOMPSON,
Petitioner,
v.

ORDER
17-cv-805-wmc

BRIAN FOSTER, Warden,
Waupun Correctional Institution,
Respondent.

In this petition for a writ of habeas corpus brought under 28 U.S.C. § 2254,
petitioner Rodell Thompson challenges his 2014 conviction in the Circuit Court for La
Crosse County of sexual assault, false imprisonment and battery.

This court previously

screened the petition and ordered the state to respond to the following claims:

(1)

Thompson’s trial counsel was ineffective for failing to adequately address the victim’s claim
that Thompson forced her to urinate on the basement floor of the home where the assault
occurred; (2) trial counsel failed to impeach the testimony of a witness, J.K., who was allowed
to provide stipulated testimony concerning an “other acts” incident; and (3) trial counsel
failed to adequately impeach the victim at a pretrial hearing with evidence concerning her
mental health. Dkt. 5, at 2.

The state responded to the petition on November 15, 2018.

Dkt. 22.
Thompson now asks the court to stay this case and place it in abeyance while he
exhausts the following claims in state court: (1) the real controversy was not fully tried; (2)
trial counsel was ineffective for failing “to adequately investigate the alleged urine stain
and/or smell on the basement floor, and/or DNA” and for failing to interview the homeowner,

who allegedly would have corroborated Thompson’s version of events; and (3) the evidence
was insufficient to support the verdict of sexual assault.

Dkt. 26.

Thompson asserts

ineffective assistance of post-conviction/appellate counsel as the reason for his failure to
exhaust these claims. He further asserts that he would have requested a stay earlier in this
case, but he has been unable to get his legal documents from the jailhouse lawyer who has
been helping him.1
Technically, Thompson should seek permission to amend his petition to include the
new claims before this court would consider them, but I’m not going to require that here
because this court would not stay Thompson’s petition in any event. Under Rhines v. W eber,
544 U.S. 269, 277 (2005), courts may stay a mixed petition, that is, a petition containing
both exhausted and unexhausted claims, in situations in which outright dismissal of the
petition could jeopardize the petitioner’s ability to later file a timely habeas petition on the
unexhausted claims. Id. at 275. Stay and abeyance are available only if there was good cause
for petitioner’s failure to exhaust his claims in state court first, if the unexhausted claims are
not plainly meritless, and if the petitioner does not appear to be engaged in abusive litigation
tactics or intentional delay.
There is no need for a stay in this case because Thompson’s unexhausted claims are
plainly meritless. His claim that the “real controversy was not fully tried” is based on state
law, not the United States Constitution. He already has exhausted his ineffective assistance
claim related to the urine.

As for counsel’s alleged failure to interview the homeowner,

Thompson presents no evidence showing what the homeowner would have said had he been
interviewed or that, had he been called as a witness, his testimony would have had a
1

In fact, Thompson’s motion for a stay consists mostly of complaints about the institution’s handling of
the jailhouse lawyer’s legal documents. I will address these concerns in a separate order.

2

reasonable probability of leading to a different outcome at trial. Finally, Thompson’s claim
that the jury’s verdict was not supported by substantial evidence has no chance of success. A
review of the transcript of the jury trial, dkts. 22-20-21, shows that the verdict was supported
by the victim’s testimony, which was corroborated by the SANE exam she underwent shortly
after the assault.
For all these reasons, Thompson’s motion for a stay, dkt. 26, is DENIED.

Entered this 26 th day of December, 2018.
BY THE COURT:
/s/
_______________________
STEPHEN L. CROCKER
Magistrate Judge

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