# Brown v. Stevens

> District Court, E.D. Wisconsin · December 5, 2019

URL: https://www.frixlaw.com/law-library/cases/10713951

## Case

- **Court:** District Court, E.D. Wisconsin
- **Decided:** December 5, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DERRICK D. BROWN,

Petitioner,
Case No. 19-cv-714-pp
v.

WILLIAM POLLARD,

Respondent.

ORDER DENYING WITHOUT PREJUDICE PETITIONER’S MOTION TO
PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 2), REQUIRING
PETITIONER TO PAY FILING FEE OR FILE TRUST ACCOUNT STATEMENT
AND GRANTING MOTIONS TO STAY PROCEEDINGS SO PETITIONER MAY
EXHAUST STATE COURT REMEDIES (DKT. NOS. 5, 7, 8)

On May 14, 2019, Derrick Brown, who doesn’t have a lawyer, filed a
petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his
January 14, 2016, judgment of conviction in Milwaukee County Circuit Court
for first degree sexual assault by use of a dangerous weapon, kidnapping with
forceful carrying, and substantial battery by use of a dangerous weapon. Dkt.
No. 1. The petitioner also asked the court for leave to proceed without
prepaying the filing fee. Dkt. No. 2. Since then, he has filed a letter explaining
to the court that he filed a motion with the court of appeals raising ineffective
assistance of counsel, dkt. no. 5; a request for an update on the status of the
case, dkt. no. 6; a motion to stay the case until the petitioner could refile a
motion in state court raising the issue of ineffective assistance of appellate
counsel, dkt. no. 7; and a request to amend the habeas petition, dkt. no. 8.
I. Motion to Proceed without Paying the Filing Fee (Dkt. No. 2)
There is a $5.00 filing fee for filing a habeas petition. 28 U.S.C. §194(a).
The petitioner filed a petition asking the court to allow him to proceed without
prepaying that fee. Dkt. No. 2. Page one of the petition explains that prisoners

seeking to proceed without prepaying the fee should complete and return the
form and the attached authorization, and provide the court with a certified
copy of his institutional trust account statement for the past six months. Dkt.
No. 2 at 1. The petitioner filled out the form, saying that he gets four dollars
every two weeks, that the prison takes 90% of that and that he saves the rest
for hygiene. Id. at 2. This may be, but without the petitioner’s trust account
statement, the court can’t confirm that. The petitioner filed an authorization for
release of institutional account information, dkt. no. 1-1 at 3, but he needed to

give a copy of that authorization to the institution business office and ask them
to give him, or to send to the court, a copy of his trust account statement. The
court will deny the petition for leave to proceed without prepaying the filing fee
without prejudice, which means that the petitioner may either pay the $5.00
filing fee or provide the court with his trust account statement, along with a
request that the court reconsider his request to proceed without prepaying the
fee.
II. Rule 4 Screening

A. Background
After a jury found the petitioner guilty of all counts, the circuit court
judge sentenced the petitioner to a term of sixty-six years. Dkt. No. 1. The
petitioner filed a motion for postconviction relief arguing ineffective assistance
of counsel. Dkt. No. 1-1 at 2. He alleged that his counsel should have
introduced evidence from a police report showing that the complaining witness
had identified men other than him as her assailant (1) when shown a photo

array that included photos of him and (2) during a live lineup in which he was
present. Id. at 4. The circuit court denied the motion on the ground that the
petitioner could not establish prejudice. Id.
The petitioner filed a direct appeal. Id. at 1. The Wisconsin Court of
Appeals agreed that he could not show that there was a reasonable probability
that the result of the proceeding would have been different but for counsel’s
conduct. Id. at 6. Specifically, the court cited the petitioner’s DNA left on a hat,
gun slide and barrel, and the “conclusive matches” of the petitioner’s blood and

the victim’s blood on the same jacket. Id. The Wisconsin Supreme Court denied
the petitioner’s petition for review under Wis. Stat. §808.10. Id. at 7.
B. Standard
Rule 4 of the Rules Governing §2254 Proceedings provides:
If 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, the judge must dismiss the petition and direct the clerk to
notify the petitioner. If the petition is not dismissed, the judge must
order the respondent to file an answer, motion or other response
within a fixed time, or to take other action the judge may order.

A court allows a habeas petition to proceed unless it is clear that the
petitioner is not entitled to relief in the district court. At the screening stage,
the court expresses no view of the merits of any of the petitioner’s claims.
Rather, the court reviews the petition and exhibits to determine whether the
petitioner has alleged that he is in custody in violation of the “Constitution or
laws or treaties of the United States.” 28 U.S.C. §2254(a). If the state court
denied the petition on the merits, this court can grant the petition only if the
petitioner is in custody as a result of: (1) “a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as
determined by the United States Supreme Court;” or (2) “a decision that was
based on an unreasonable application determination of the facts in light of the
evidence presented in the state court proceeding.” 28 U.S.C. §2254(d).
The court also considers whether the petitioner filed within the
limitations period, exhausted his state court remedies and avoided procedural
default. Generally, a state prisoner must file his habeas petition within one
year of the judgment becoming final. 28 U.S.C. §2254(d)(1)(A). In addition, a

state prisoner must exhaust the remedies available in the state courts before
the district court may consider the merits of his federal petition. 28 U.S.C.
§2254(b)(1)(A). If the district court discovers that the petitioner has included an
unexhausted claim, the petitioner either must return to state court to exhaust
the claim or amend his petition to present only the exhausted claims. Rose v.
Lundy, 455 U.S. 509, 510 (1982).
Finally, even if a petitioner has exhausted a claim, the district court may

still be barred from considering the claim if the petitioner failed to raise the
claim in the state’s highest court in a timely fashion or in the manner
prescribed by the state’s procedural laws. See O'Sullivan v. Boerckel, 526 U.S.
838, 848 (1999); Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000)
C. Analysis

The petition raises two ineffective assistance of counsel claims. First, the
petitioner argues that his trial counsel didn’t tell the jury that the victim twice
failed to identify the petitioner as the attacker and that the victim told
detectives the petitioner was not the attacker. Dkt. No. 1 at 6. Second, the
petitioner argues that his appellate counsel failed to challenge the sufficiency of
the evidence. Id. at 7. According to the petitioner, the “only evidence the state
brought against [the petitioner] were movable objects with his DNA on them, as
well as the victim’s DNA.” Id. The petitioner argues the state failed to introduce

any evidence about how or when his DNA was transferred to those objects. Id.
As to the second claim regarding the ineffective assistance of his
appellate counsel, the petitioner indicated that he did not exhaust his state
remedies on that claim “because [he didn’t] know what motion [he] need[ed] to
file in order to exhaust the issue.” Id. at 8. He explained that he was proceeding
pro se and didn’t know what to do. Id. About four months after the court
received the petition in this case, it received a letter from the petitioner. Dkt.
No. 5. The letter clarified that the petitioner did file a motion with the court of

appeals, raising the issue of his appellate counsel’s ineffectiveness, but that the
court of appeals denied his motion because “they said that [he] already had
counsel, therefore, [he] could not file a hybrid motion.” Id. The petitioner
asserted that he tried to exhaust the ineffective appellate counsel issue “the
only way [he] knew how to.” Id. He asked this court to allow him to “re-file the
motion with the court of appeals, now that I don’t have counsel anymore; if
that’s what is necessary.” Id.1
A little over a month after that, the court received from the plaintiff a
letter motion, asking the court to allow him to amend the federal habeas

petition, and to hold the federal case in abeyance until he could re-file the
motion in state court. Dkt. No. 7. This was a reiteration of the request he’d
made a month or so earlier; the court imagines the petitioner repeated the
request because he had not heard from the court.2 The next day, the court
received another letter motion from the petitioner. Dkt. No. 8. This one asked
the court to allow the petitioner to add an argument that his trial counsel did
not clarify to the jury that the eyewitness gave a description of the perpetrator
that did not match the petitioner, and that his appellate counsel mentioned

that fact but that he was “not sure if she raised it as an issue.” Id. The
petitioner asked the court to allow him to go back to state court and exhaust
this issue. Id.
The petitioner appears to recognize that the law requires him to give the
state courts one full opportunity to review his arguments before he may seek
federal habeas relief. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This

1 A person wishing to challenge the effectiveness of his appellate counsel in
Wisconsin must file a petition under State v. Knight. 168 Wis. 2d 509 (Wis.
1992).

2 The court regrets that it has taken the court such a long time to address the
petitioner’s case. The court is short-staffed by one district judge and one
magistrate judge, and the court’s case load has increased. This is not the only
case that has been delayed, and the court apologizes to the petitioner.
“full opportunity” “includes presenting the claims to the state’s highest court in
a petition for discretionary review.” Hicks v. Hepp, 871 F.3d 513, 530 (7th Cir.
2017) (citing Boerckel, 526 U.S. at 845).
It appears from what the petitioner has told the court that he may not

have exhausted two claims—the claim that his trial counsel was ineffective for
not alerting the jury to the allegedly faulty eyewitness identification and the
claim that his appellate counsel was ineffective. This means that the petitioner
has filed what is known as a “mixed” petition—it contains one exhausted claim
and some unexhausted claims. Rose v. Lundy, 455 U.S. 509, 510 (1982)
(“mixed petitions” are petitions that contain both exhausted and unexhausted
claims).
A federal court “may not adjudicate mixed petitions for habeas corpus,

that is, petitions containing both exhausted and unexhausted claims.” Rhines
v. Weber, 544 U.S. 269, 273 (2005). When the Supreme Court issued this
ruling, it required district courts to dismiss “mixed petitions” without prejudice
and allow the petitioners to go back to state court and exhaust the
unexhausted claims. Id. (citing Lundy, 455 U.S. at 522). About fifteen years
later, however, Congress passed the Antiterrorism and Effective Death Penalty
Act, which required an inmate to file a federal habeas petition within one year

of the date on which the judgment becomes final. Id. (citing 28 U.S.C.
§2244(d)). Recognizing that if a district court dismissed a “mixed petition” and
required the petitioner to go back to state court, the petitioner might be barred
by the AEDPA statute of limitations from returning to federal court, the
Supreme Court concluded that a district court could, if it chose to do so, stay
the federal habeas case (rather than dismissing it) and allow the petitioner to
go back to state court without losing his ability to seek federal habeas review.
Id. at 276 (citations omitted).

The Supreme Court has cautioned that “stay and abeyance is only
appropriate when the district court determines there was good cause for the
petitioner’s failure to exhaust his claims first in state court.” Id. at 277. Even if
a petitioner shows show good cause, “the district court would abuse its
discretion if it were to grant him a stay when his unexhausted claims are
plainly meritless.” Id. Finally, the Court has instructed district courts that they
should not stay mixed petitions “indefinitely.” Id. The Court held that “district
courts should place reasonable time limits on a petitioner’s trip to state court

and back.” Id. at 278.
The petitioner has asked the court to stay the habeas proceedings and
hold them in abeyance while he returns to the state court to exhaust his
unexhausted claims. The law requires a petitioner who makes such a request
to show good cause for his failure to exhaust, to show that his claim is
potentially meritorious, and to show there is no indication that he has engaged
in intentionally dilatory litigation tactics. Rhines, 544 U.S. at 278.

The court finds that, at least as to his failure to exhaust the claim that
his appellate counsel was ineffective, the petitioner has shown good cause for
failure to exhaust. He has explained that he tried to file the motion with the
court of appeals, but that they wouldn’t accept it while he still had a lawyer.
While the court has not seen all the details of the petitioner’s case, it sounds as
if his claim may have merit. And the court has no indication that the petitioner
is making this request for the purpose of inappropriate delay or foot-dragging.
The court will grant the plaintiff’s request to go back to state court and exhaust

his remedies. The court will stay the federal case, and will administratively
close the case until the petitioner has exhausted his claims in state court. The
court will order that within thirty days of the conclusion of his state-court
litigation, the petitioner must file a motion asking to reopen the case. Assuming
that he’s either paid the federal filing fee or the court has waived it, the court
then will reopen the case, maintaining the original filing date for the petition.
At that time, the petitioner may amend his petition to clarify the claims that he
is raising and to indicate whether he’s exhausted them.

The court cautions the petitioner that he should use his time in state
court to exhaust all claims that he wants to raise in this federal habeas
petition, whether the claims relate to his trial counsel or his appellate counsel.
This may require him to file different motions with different levels of the state
court.
III. Conclusion
The court DENIES WITHOUT PREJUDICE the petitioner’s motion for

leave to proceed without prepayment of the filing fee. Dkt. No. 2. The court
ORDERS that in time for the court to receive it by the end of the day on
January 10, 2020, the petitioner either shall pay the $5.00 filing fee or shall
file a certified copy of his trust account statement for the past six months,
along with a request for the court to reconsider its order denying his motion for
leave to proceed without prepaying the filing fee. If the court does not receive
either the $5.00 filing fee or the trust account statement and request to
reconsider by the end of the day on January 10, 2020, the court may dismiss
the case without further notice or hearing.
The court GRANTS the petitioner’s motion to stay the federal habeas
proceedings. Dkt. Nos. 5, 7, 8. The court ORDERS that the federal proceedings
are STAYED until the petitioner has exhausted his state court remedies.
The DIRECTS the clerk of court to CLOSE this case for administrative
purposes. The court ORDERS that within thirty days after the conclusion of
his state court proceedings, the petitioner must file a motion in this case
(captioned “Motion to Reopen”), informing the court that the state court
proceedings are finished and asking the court to reopen the federal case. Once
it receives that motion, the court will reopen the case immediately (assuming
that the petitioner either has paid the $5.00 filing fee or the court has allowed
him to proceed without prepaying it), with the parties retaining all rights they
would have had had the case not been closed for administrative purposes. The
petitioner will have the benefit of the original filing date.
Dated in Milwaukee, Wisconsin this 5th day of December, 2019.
BY THE COURT:

Chief United States District Judge

1U

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10713951. Public record. Not legal advice.