Deyot, Stephanie v. Dunn County, WI Courthouse et al

Filing 6

ORDER that petitioner Stephanie Ann Deyot has until April 4, 2018 to show cause why her claims should not be dismissed as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d)(1) or the doctrine of procedural default. Signed by District Judge Barbara B. Crabb on 3/21/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - STEPHANIE ANN DEYOT,
OPINION AND ORDER
Petitioner,
18-cv-119-bbc
v.
DUNN COUNTY, WI COURTHOUSE and
WI DEPARTMENT OF CORRECTIONS,
Respondents.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner Stephanie Deyot has filed a pro se petition for a writ of habeas corpus
under 28 U.S.C. § 2254 in which she challenges a judgment of conviction entered on
May 31, 2013 and the revocation of her probation on December 9, 2014, by the Circuit
Court for Dunn County, Wisconsin, on counts of possession with intent to distribute
amphetamine and the manufacture and delivery of heroin, in Case No. 2013CF33. She
has paid the $5 filing fee, so her petition is ready for screening pursuant to Rule 4 of the
Rules Governing Section 2254 Cases. Rule 4 requires the court to examine the petition
and supporting exhibits and dismiss a petition if it “plainly appears” that petitioner is not
entitled to relief. Also before the court is petitioner’s motion for assistance in recruiting
counsel. Dkt. #5.
I understand petitioner to be raising the following grounds for relief:

(1)

petitioner was charged and convicted based on inaccurate or missing evidence because

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police officers planted the drugs that were found in the car she was in; (2) petitioner was
not formally charged or advised of her rights under Miranda v. Arizona, 384 U.S. 436
(1966), with respect to the manufacture and delivery of heroin count; and (3) petitioner
received ineffective assistance from her trial counsel who failed to challenge inconsistent
testimony given by police officers and raise other civil rights violations. After reviewing
petitioner’s submissions and relevant court records, it appears that the petition is
untimely and that petitioner has procedurally defaulted her claims. However, I will give
petitioner a short opportunity to show cause why the case should not be dismissed.

OPINION
On February 1, 2013, petitioner was charged with possession with intent to
distribute amphetamine and manufacture and delivery of heroin. On May 31, 2013, she
entered a plea of no contest to those charges and was sentenced to seven years and six
months’ probation. On December 9, 2014, petitioner’s probation was revoked and she
was sentenced to three years in prison and four years of extended supervision. Petitioner
did not file a direct appeal or any postconviction motions. She filed her petition for writ
of habeas corpus in this court on February 20, 2018.
Petitioner faces two obvious obstacles: exhaustion and timeliness. I will discuss
each issue separately.

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A. Exhaustion
The federal habeas corpus statutes require a petitioner to exhaust all available state
remedies before seeking relief in federal court. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999).

The doctrine of exhaustion requires a habeas

corpus petitioner to “fully and fairly present” her claims in such a way as to give the state
appellate courts a meaningful opportunity to consider the substance of those claims and
correct any mistakes.

Picard v. Connor, 404 U.S. 270, 275 (1971); Curtis v.

Montgomery, 552 F.3d 578, 582 (7th Cir. 2009) (citations omitted). To “fully” present
her claims, a petitioner must pursue all available avenues of relief and comply with the
state’s procedural requirements before turning to the federal courts. A habeas petitioner
who misses an opportunity to properly present a claim in state court commits a
procedural default that may forfeit federal review of that claim. Curtis, 552 F.3d at 582
(citing Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir. 2007)). See also Guest v.
McCann, 474 F.3d 926, 930 (7th Cir. 2007) (“If a habeas petitioner has not exhausted a
claim, and complete exhaustion is no longer available, the claim is procedurally
defaulted.”).
Petitioner says, and my review of online Wisconsin court records confirms, that
she did not present her claims at any level of the Wisconsin court system.

Where a

procedural default has occurred, federal habeas corpus review is available only if the
petitioner can demonstrate: (1) “cause for the default and actual prejudice as a result of
the alleged violation of federal law,” or (2) that “failure to consider the claims will result
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in a fundamental miscarriage of justice.”

Coleman v. Thompson, 501 U.S. 722, 750

(1991); Brown v. Watters, 599 F.3d 602, 609 (7th Cir. 2010) (citing Johnson v. Hulett,
574 F.3d 428, 430 (7th Cir. 2009). Cause to overcome a procedural default requires a
showing “that some objective factor” prevented compliance with the procedural rule.
Coleman, 501 U.S. at 753 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). To
show prejudice, a petitioner must present evidence that the alleged violations “worked to
h[er] actual and substantial disadvantage,” which infected h[er] entire proceeding with an
“error of constitutional dimensions.” Perruquet v. Briley, 390 F.3d 505, 515 (7th Cir.
2004) (citation omitted).

A fundamental miscarriage of justice occurs only where the

petitioner presents evidence showing that she is “actually innocent” of the charges against
her. Dretke v. Haley, 541 U.S. 386, 393 (2004).
Petitioner states that she failed to exhaust her state court remedies because she
was young and naive and was mislead by trial counsel. Although lack of experience does
not excuse procedural default, ineffective assistance of counsel can establish “cause” for a
procedural default.

However, in Edwards v. Carpenter, 529 U.S. 446 (2000), the

Supreme Court held that because the assertion of ineffective assistance as a cause to
excuse a procedural default in a § 2254 petition is itself a constitutional claim, the
petitioner will be held to have procedurally defaulted this claim unless she has raised it
first in the state court

Id. at 452-53. It does not appear that petitioner ever presented a

claim of ineffective assistance of trial counsel to the state courts, but she still may be able
to raise the issue in a postconviction motion filed under Wis. Stat. § 974.06. If that is
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the case, petitioner will have to exhaust her state court remedies in state court before
seeking habeas relief in this court.
Because procedural default is an affirmative defense, petitioner was not required to
show cause and prejudice or actual innocence in her petition. Perruquet, 390 F.3d at
515.

Nevertheless, a court may raise an affirmative defense before requiring the

respondent to answer if “it is so plain from the language of the complaint and other
documents in the court’s files that it renders the suit frivolous.” Gleash v. Yuswak, 308
F.3d 758, 760-61 (7th Cir. 2002) (“Under the circumstances there was no point to
serving the defendants with process, forcing them to engage counsel, and then waiting for
the inevitable motion to dismiss.”). Therefore, I will give petitioner an opportunity to
overcome her default by showing: (1) what cause she may have for her failure to properly
present her defaulted claims to the state courts; and (2) what prejudice she will suffer as
the result of her failure to raise these claims properly; or (3) whether a failure to review
her claims will constitute a fundamental miscarriage of justice because she is actually
innocent of the charges against her.

Because any response will be considered as a

“supplement” to her petition for a writ of habeas corpus, petitioner must make sure to
declare that any statements contained in her response are made under penalty of perjury.
28 U.S.C. § 2242 (petition must be “signed and verified” by petitioner). Petitioner will
have until April 4, 2018 to supplement her petition. If she files the supplement, the
court will determine whether she may proceed with her claims or whether they should be

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dismissed as procedurally defaulted. If petitioner fails to file a supplement by April 4, her
claims will be dismissed as procedurally defaulted.

B. Timeliness
Petitions brought under § 2254 have a one-year statute of limitations that begins
to run from the date on which the judgment of conviction is final. Because petitioner did
not file a direct appeal or a motion for postconviction relief, her conviction became final
when the time for seeking a direct appeal expired. At the latest, this would have been on
February 9, 2015. Wis. Stat. § 809.30(2)(h) (defendant has 60 days from receipt of trial
court transcript to file notice of appeal or motion for postconviction relief). Her one-year
clock for filing a federal habeas petition began running the next day, February 10, 2015,
and it expired one year later, on February 10, 2016. Petitioner did not file her habeas
petition in this court until 2018, long after the one-year period for doing so had expired.
The deadline for filing habeas petitions may be extended if the state prevented the
petitioner from filing earlier, if the Supreme Court has recognized a new constitutional
right or if the petitioner has discovered new facts supporting her claim.

28 U.S.C. §

2244(d)(1)(B)-(D). In addition, an untimely petition may be salvaged if grounds exist to
equitably toll, that is, stop the running of the limitations period.

Equitable tolling,

however, is an extraordinary remedy that is rarely granted. Tucker v. Kingston, 538 F.3d
732, 734 (7th Cir. 2008). The Supreme Court has explained that “a petitioner is entitled
to equitable tolling only if she shows (1) that she has been pursuing her rights diligently,
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and (2) that some extraordinary circumstance stood in her way and prevented timely
filing.”

Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks

omitted).
Petitioner provides no reason why she failed to file her federal habeas petition
within the one-year period, apart from alleging that she was young and naive and her trial
counsel “misled” her. As with procedural default, petitioner’s lack of experience is not
enough to invoke equitable tolling.

Although I understand that it can be difficult to

understand filing requirements and deadlines, the “[l]ack of familiarity with the law . . . is
not a circumstance that justifies equitable tolling.” Taylor v. Michael, 724 F.3d 806, 811
(7th Cir. 2013). However, petitioner’s allegations of ineffective assistance of trial counsel
may be relevant to equitable tolling, depending on the circumstances.

Socha v.

Boughton, 763 F.3d 674, 685 (7th Cir. 2014). Because a petitioner must have fair notice
and an opportunity to present her position with respect to timeliness, Day v.
McDonough, 547 U.S. 198, 210 (2006), I will allow her an opportunity to present a
valid reason why her claims are not barred from federal review by the one-year statute of
limitations under 28 U.S.C. § 2244(d)(1).

ORDER
IT IS ORDERED that petitioner Stephanie Ann Deyot has until April 4, 2018 to
show cause why her claims should not be dismissed as barred by the one-year statute of

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limitations under 28 U.S.C. § 2244(d)(1) or the doctrine of procedural default.
petitioner fails to respond by April 4, I will dismiss the petition with prejudice.
Entered this 21st day of March, 2018.

BY THE COURT:
/s/
__________________________
BARBARA B. CRABB
District Judge

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If