The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DERRICK D. BROWN,
Petitioner,
Case No. 19-cv-714-pp
v.
DYLON RADTKE,1
Respondent.
ORDER CONSTRUING MOTION FOR RECONSIDERATION AS RENEWED
MOTION TO PROCEED WITHOUT PREPAYING THE FILING FEE AND
GRANTING (DKT. NO. 10), GRANTING MOTION TO RE-OPEN CASE (DKT.
NO. 13) AND REQUIRING RESPONDENT TO FILE RESPONSE
I. Motion for Reconsideration (Dkt. No. 10).
In December 2019, the court issued an order denying the petitioner’s
request to proceed without prepaying the $5.00 filing fee because it could not
verify the petitioner’s financial status without a copy of his trust account
statement. Dkt. No. 9. It asked the petitioner to provide a copy of his trust
account statement. Id. Two weeks later, the petitioner filed that statement
1 The petitioner is incarcerated at Green Bay Correctional Institution. See
General Public-Offender Search, WISCONSIN DEP’T OF CORRECTIONS, available at
https://appsdoc.wi.gov_/lop/home.do (last visited August 6, 2020). The
warden of that institution is Dylon Radtke, WISCONSIN DEP’T OF CORRECTIONS,
available at https://doc.wi.gov/Pages/OffenderInformation/AdultInstitutions/
GreenBayCorrectionalInstitution.aspx (last visited Apr. 21, 2020). Under Rule
2(a) of the Rules Governing Section 2254 Cases and Fed. R. Civ. P. 25(d), the
court has updated the caption to reflect the appropriate respondent.
along with a motion asking the court to reconsider its order denying his motion
to proceed without prepaying the filing fee. Dkt. No. 10.
The court has no reason to reconsider its December 2019 order denying
the motion; based on the information that the court had at that time, the court
appropriately denied the motion. The petitioner, however, now has provided the
court with the information it requested. With his trust account statement, the
court can verify his financial assertions. The court will now construe the
petitioner’s motion for reconsideration as a renewed motion for leave to proceed
without prepaying the $5.00 filing fee.
The court previously wrote that the petitioner had alleged “that he gets
four dollars every two weeks, that the prison takes 90% of that and that he
saves the rest for hygiene.” Dkt. No. 9 at 1. The trust account statement shows
a balance of $16.88 as of December 19, 2019 with a monthly average for the
previous six months of $14.70. Dkt. No. 11. It appears that the petitioner
receives approximately $4.00 every two weeks, of which over $3.60 goes to
victim restitution, a medical co-pay loan, child support payments and his
inmate release account. Id. The statements support the petitioner’s allegation
that over 90% of his prison income is unavailable for his use. The court finds
that the petitioner is unable to pay the $5.00 filing fee.
Before the court can grant the motion for leave to proceed without
prepaying the filing fee, however, it must determine whether the petition raises
claims that can be adjudicated in a federal habeas proceeding. That analysis
implicates the petitioner’s other pending motion—his motion to re-open the
case.
II. Motion to Reopen Case (Dkt. No. 13)
The court’s December 2019 order denying the petitioner’s motion to
proceed without prepaying the filing fee also granted the petitioner’s request to
stay his federal habeas petition. Dkt. No. 9. The order recounted that the
petition raised a claim for ineffective assistance of trial counsel and a claim for
ineffective assistance of appellate counsel. Id. at 5. It noted that the petitioner
had admitted that he had not presented his ineffective assistance of appellate
counsel claim to the Wisconsin state courts for their review. Id. at 5-6. The
court informed the petitioner that he had presented a “mixed” petition—
containing both exhausted and unexhausted claims—and that the court could
not adjudicate a mixed petition for habeas corpus. Id. at 7. Apparently
recognizing this pitfall, the petitioner asked the court to stay his federal habeas
petition while he returned to state court; the court granted that request. Id.
Because it was not clear how long it would take the state courts to resolve his
proceedings, the court administratively closed this federal case. Id. The court
instructed the petitioner to file a motion titled “Motion to Reopen Case” within
thirty days of the conclusion of his state court proceedings. Id.
On April 10, 2020, the petitioner filed a “Motion to Reopen Case.” Dkt.
No. 13. The motion explains that his Knight petition alleging ineffective
assistance of appellate counsel in the Wisconsin Court of Appeals was
dismissed because he did not sign the petition in front of a notary. Id. at 1. He
states that the appellate court gave him thirty days to file a signed petition. Id.
The petitioner states that he did not understand what the court meant and
that by the time he figured it out, “the institution was on lockdown, and [he]
was also in seg[regation] so [he] ended up missing the thirty-day deadline.” Id.
He says that he wrote to the Court of Appeals asking it to reconsider its
dismissal of his case, but that he hasn’t received a response from that court.
Id. He states that he is unsure of what he needs to do in the state court at this
point; “[s]o because I don’t want to take the chance of my case being dismissed
in this court for missing a deadline, I am filing this motion to reopen my case
in this court[.]” Id. He states that he would like to continue with his exhausted
claim of ineffective assistance of trial counsel “even if it means that I lose the
chance to continue fighting the issue of ineffective assistance of appellate
counsel in the state courts.” Id.
The petitioner requests “that my original case be reopened with just the
one issue of ineffective assistance of Trial Counsel, which was exhausted by my
appellate counsel in the state courts.” Dkt. No. 13 at 1. The court will grant
that request, re-open the case and order a response. The petitioner is well
within his rights to choose to proceed on solely his exhausted claim and to give
up his unexhausted claim; it is one of the options available to a petitioner who
files mixed petitions that the Supreme Court explicitly contemplated in Rose v.
Lundy, 455 U.S. 509, 510 (1982) and Rhines v. Weber, 544 U.S. 269 (2005).
The May 14, 2019 petition alleges ineffective assistance of trial counsel, which
is a claim cognizable in a federal habeas petition. See Cook v. Foster, 948 F.3d
896 (7th Cir. 2020). And at the screening stage, the court cannot say that it
plainly appears the petitioner is not entitled to relief.
The court observes that the petitioner’s choice to proceed on this lone
claim in federal court does not preclude him from continuing to pursue his
ineffective assistance of appellate counsel claim in state court.
III. Conclusion
The court GRANTS the petitioner’s renewed motion for leave to proceed
without prepayment of the filing fee. Dkt. No. 10.
The court GRANTS the petitioner’s motion to re-open the case, dkt. no.
13, and ORDERS that the Clerk of Court RE-OPEN the case.
The court ALLOWS the petitioner to proceed on ground one of his
petition for writ of habeas corpus, ineffective assistance of trial counsel.
The court ORDERS that within sixty days of the date of this order, the
respondent shall answer or otherwise respond to the petition, complying with
Rule 5 of the Rules Governing §2254 Cases, and showing cause, if any, why the
writ should not issue.
The court ORDERS that the parties must comply with the following
schedule for filing briefs on the merits of the petitioner’s claims:
(1) the petitioner has forty-five days after the respondent files the answer
to file a brief in support of his petition;
(2) the respondent has forty-five days after the petitioner files his initial
brief to file a brief in opposition;
(3) the petitioner has thirty days after the respondent files the opposition
brief to file a reply brief, if he chooses to file such a brief.
If, instead of filing an answer, the respondent files a dispositive motion:
(1) the respondent must include a brief and other relevant materials in
support of the motion;
(2) the petitioner then must file a brief in opposition to that motion
within forty-five days of the date the respondent files the motion;
(3) the respondent has thirty days after the petitioner files his opposition
brief to file a reply brief, if the respondent chooses to file such a brief.
The parties must submit their pleadings in time for the court to receive
them by the stated deadlines.
Under Civil Local Rule 7(f), briefs in support of or in opposition to the
habeas petition and any dispositive motions shall not exceed thirty pages, and
reply briefs may not exceed fifteen pages—not counting any statements of fact,
exhibits and affidavits. The court asks the parties to double-space any typed
documents.
Under the Memorandum of Understanding between the Wisconsin
Department of Justice (DOJ) and the U.S. District Court for the Eastern
District of Wisconsin, the court will notify the DOJ (through the Criminal
Appeals Unit Director and lead secretary) of this order via Notice of Electronic
Filing (NEF). The DOJ will inform the court within twenty-one days of the date
of the NEF whether it will accept service on behalf of the respondent (and, if
not, the reason for not accepting service and the last known address of the
respondent). The DOJ will provide the pleadings to the respondent on whose
behalf it has agreed to accept service of process.
Dated in Milwaukee, Wisconsin this 7th day of August, 2020.
BY THE COURT:
HON. PAMELA PEPPER
Chief United States District Judge