The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL K. BROWN,
Petitioner,
Case No. 22-CV-934-JPS
v.
WARDEN PETER JAEGER,
ORDER
Respondent.
1. INTRODUCTION
On August 15, 2022, Petitioner Michael K. Brown (“Brown” or
“Petitioner”) filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. ECF No. 1. On November 1, 2022, the Court granted Brown’s
motion for leave to file an amended petition. ECF Nos. 5, 7. On November
14, 2022, Brown filed his amended petition and a brief in support. ECF Nos.
8, 9. The Court will now screen his amended petition under Rule 4 of the
Rules Governing Section 2254 Proceedings.
2. FACTUAL BACKGROUND
On July 6, 2018, Brown was charged in Walworth County Case No.
2018CF0003471 with one count of robbery of a financial institution as a party
to a crime. See State v. Brown, Nos. 2020AP552-CR & 2020AP553-CR, 2021
WL 8649427, at *1 (Wis. Ct. App. May 5, 2021). Following his arrest in that
case, Brown was charged in a separate complaint in Walworth County Case
1State v. Brown, No. 2018CF000347, available at
https://wcca.wicourts.gov/caseDetail.html;jsessionid=20A3258A2AB4A8EE49D4
C0DDC5A60BE8.render4?caseNo=2018CF000347&countyNo=64&mode=details
(last visited May 26, 2023).
No. 2018CF0003712 with one count of attempted escape. See Brown, 2021 WL
8649427, at *1.
Brown pled guilty to both charges, and on January 10, 2019, the
circuit court sentenced Brown to a total term of 22 years’ imprisonment,
bifurcated as nine years of initial confinement and 13 years of extended
supervision. Id.; ECF No. 8 at 2. According to Brown, his judgment of
conviction was dated January 17, 2019. ECF No. 8 at 2.
Brown filed a postconviction motion seeking to withdraw his guilty
plea to the robbery charge on the ground that he did not understand the
nature of the charge. Brown, 2021 WL 8649427, at *2. Before the circuit court,
Brown alleged
that in conducting the plea colloquy, the circuit court relied
upon the jury instructions attached to the written guilty plea
questionnaire to ascertain whether Brown understood the
nature of the offense; however, Brown’s counsel attached the
wrong jury instruction to the plea questionnaire. Counsel
attached the jury instruction for armed robbery, whereas
Brown was charged with robbery of a financial institution.
Id. Brown argued that “he did not understand that the [S]tate must prove
that the victim was a financial institution.” Id. The circuit court held a
hearing on the motion where Brown’s counsel testified. Id. The circuit court
“acknowledged that its plea colloquy was ‘defective’ . . . but ultimately
denied Brown’s motion.” Id.
Brown appealed that decision, “contend[ing] that his plea to the
robbery charge was not knowing, intelligent, and voluntary because he was
2State v. Brown, No. 2018CF000371, available at
https://wcca.wicourts.gov/caseDetail.html;jsessionid=20A3258A2AB4A8EE49D4
C0DDC5A60BE8.render4?caseNo=2018CF000371&countyNo=64&mode=details
(last visited May 19, 2023).
unaware of one of the essential elements of the crime.” Id. at *1. The
Wisconsin Court of Appeals affirmed the circuit court’s opinion on May 5,
2021. Id. at *4. Brown petitioned to the Wisconsin Supreme Court, which
denied review on September 14, 2021. State v. Brown, Nos. 2020AP552-CR
& 2020AP553-CR, 2021 WL 9781549 (Wis. Sept. 14, 2021).
Brown has also filed a motion for a sentence modification related to
a “new factor not known at the time of sentencing” and “relative sentences
with aggravating circumstances [that were] . . . far less;” a judicial
misconduct complaint; and an administrative complaint regarding
prejudicial treatment by the prosecutor because Brown was a plaintiff in a
federal civil lawsuit against the county. ECF No. 8 at 5–6. The circuit court
docket sheet shows that the circuit court denied the motion for a sentence
modification in April 2022, and it does not appear that Brown has appealed
that decision yet. Brown contends he has not received a decision on his
other complaints. Id.
Brown now seeks habeas relief on the following grounds: (1) his
defense counsel at sentencing attached the incorrect jury instruction to the
plea questionnaire rendering Brown’s plea not intelligently entered because
he did not understand the essential elements of the offense (“Ground
One”); (2) his defense counsel was ineffective by attaching the wrong jury
instruction to the plea questionnaire and by failing to discuss the elements
of the crime with Brown (“Ground Two”); and (3) the circuit court failed to
meet its mandatory duties during the plea colloquy (“Ground Three”). ECF
Nos. 8, 9.
3. ANALYSIS
Rule 4 authorizes a district court to conduct an initial screening of
habeas corpus petitions and to dismiss a petition summarily where “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.” Thus, Rule 4
provides the district court the power to dismiss both those petitions that do
not state a claim upon which relief may be granted and those petitions that
are factually frivolous. See Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993).
Under Rule 4, the Court analyzes preliminary obstacles to review, including
whether the petitioner has complied with the statute of limitations,
exhausted available state remedies, avoided procedural default, and set
forth cognizable claims.
3.1 Timeliness
First, the Court considers the timeliness of the petition. A state
prisoner in custody pursuant to a state court judgment has one year from
the date “the judgment became final” to seek federal habeas relief. 28 U.S.C.
§ 2244(d)(1)(A). A judgment becomes final within the meaning of
Section 2244(d)(1)(A) when all direct appeals in the state courts are
concluded, followed by either the completion or denial of certiorari
proceedings in the U.S. Supreme Court, or, if certiorari is not sought, at the
expiration of the ninety days allowed for filing for certiorari. See Ray v.
Clements, 700 F.3d 993, 1003 (7th Cir. 2012).
Here, the Wisconsin Supreme Court denied Brown’s petition for
review on September 14, 2021. Brown, 2021 WL 9781549. Brown did not seek
certiorari with the U.S. Supreme Court. ECF No. 1 at 4. Thus, his judgment
became final ninety days later, on December 13, 2021. Brown then had one
year in which to file his petition (i.e., until December 13, 2022). Brown’s
federal habeas petition, filed August 15, 2022, ECF No. 1, is timely.
3.2 Exhaustion
Next, the Court analyzes whether Brown fully exhausted his state-
court remedies. A district court may not address grounds raised in a habeas
petition “unless the state courts have had a full and fair opportunity to
review them.” Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991). Accordingly,
a state prisoner is required to exhaust the remedies available in state court
before a district court will consider the merits of a federal habeas petition.
28 U.S.C. § 2254(b)(1)(A); Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir.
2001). A petitioner exhausts his claim when he presents it to the highest
state court for a ruling on the merits. Lieberman v. Thomas, 505 F.3d 665, 669
(7th Cir. 2007) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)); Perruquet v.
Briley, 390 F.3d 505, 513 (7th Cir. 2004). Once the state’s highest court has
had a full and fair opportunity to pass upon the merits of the claim, a
petitioner is not required to present it to that court again. Humphrey v. Cady,
405 U.S. 504, 516 n.18 (1972).
It appears that Brown has fully exhausted Grounds One and Three.
Brown, 2021 WL 8649427. Exhaustion is less clear as to Ground Two. Brown
does not appear to have labeled any claim as one for ineffective assistance
of counsel before the Wisconsin Court of Appeals, and the Wisconsin Court
of Appeals did not use that label either. Id. However, the Wisconsin Court
of Appeals analyzed Brown’s defense counsel’s conduct. Id. at *4 (analyzing
sufficiency of counsel’s notes on plea questionnaire despite attachment of
wrong instruction and counsel’s testimony as to same before circuit court).
“Fair presentment does not necessarily require that the petitioner explicitly
present the federal claim; it requires that the substance of a federal habeas
corpus claim must first be presented to the state courts.” Grady v. Cooper,
511 F. Supp. 3d 918, 931 (E.D. Wis. 2021) (quotation omitted).
At this juncture, the Court also lacks the benefit of Brown’s briefing
on appeal to determine how the claim was presented. See, e.g., Owens v.
Bartow, No. 08C0049, 2008 WL 1835407, at *1 (E.D. Wis. Apr. 22, 2008) (“I
noted that petitioner may have failed to exhaust some of these claims, but I
deferred ruling on the exhaustion issue until the respondent could
appear.”). Therefore, the Court is not able to make a definite determination
as to the exhaustion of Ground Two based on these facts at the screening
stage. The Court will decline to rule on this issue at this time and will revisit
it with the benefit of discovery and briefing.
If it turns out that Brown’s § 2254 petition presents both exhausted
and unexhausted claims, the Court will have to decide how to move
forward. “[A] district court faced with a mixed petition has discretion to
enter a stay to allow the petitioner to present his unexhausted claims to the
state court in the first instance, preserving the petitioner’s ability to return
to federal court for review of his perfected petition.” BRIAN R. MEANS,
FEDERAL HABEAS MANUAL § 9C:70, 1383 (2019 ed.) (citing Rhines v. Weber,
544 U.S. 269, 275–77 (2005)). Alternatively, the district court can allow the
petitioner to remove the unexhausted claims and proceed with the
exhausted claims if dismissal of the entire petition would unreasonably
impair the petitioner’s right to obtain federal relief. Rhines, 544 U.S. at 279.
Should the issue be briefed at some point in this action, Brown should be
prepared to explain why his is one of those “limited circumstances”
warranting a stay, or whether he wishes to proceed only on the properly
exhausted grounds. Id.
3.3 Procedural Default
The Court next determines whether Brown has procedurally
defaulted on any of his grounds. Even though a constitutional claim in a
federal habeas petition has been exhausted, a court is still barred from
considering the ground if the petitioner has procedurally defaulted on the
claim. See Mahaffey v. Schomig, 294 F.3d 907, 915 (7th Cir. 2002). A state
prisoner procedurally defaults on a constitutional claim in a habeas petition
when he fails to raise the claim in the state’s highest court in a timely fashion
or in the manner prescribed by state law. O’Sullivan v. Boerckel, 526 U.S. 838,
848 (1999); Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000). Here,
on the record before the Court, is it does not appear that Brown has
procedurally defaulted any of his grounds.
3.4 Frivolous Claims
The Court concludes its Rule 4 review by screening Brown’s
amended petition for patently frivolous claims. Ray, 700 F.3d at 996 n.1.
Without expressing any opinion as to the potential merit of Brown’s claims,
it does not plainly appear that they are frivolous.
4. CONCLUSION
Brown’s amended petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 survives screening. The case will proceed as discussed
below.
Accordingly,
IT IS ORDERED that the parties shall proceed in accordance with
the following schedule:
1. Within thirty (30) days of entry of this Order, Respondent
shall file either an appropriate motion seeking dismissal of this action or
answer the amended petition, complying with Rule 5 of the Rules
Governing Section 2254 Cases, and showing cause, if any, why the writ
should not issue; and
2. If Respondent files an answer, then the parties should abide
by the following briefing schedule:
a. Petitioner shall have sixty (60) days after the filing of
Respondent’s answer within which to file a brief in support of his
amended petition, providing reasons why the writ of habeas corpus
should be issued. Petitioner is reminded that, in accordance with 28
U.S.C. § 2248, unless he disputes allegations made by Respondent in
his answer or motion to dismiss, those allegations “shall be accepted
as true except to the extent that the judge finds from the evidence
that they are not true.”
b. Respondent shall file an opposition brief, with reasons
why the writ of habeas corpus should not be issued, within sixty (60)
days of service of Petitioner’s brief, or within one hundred twenty
(120) days from the date of this Order if no brief is filed by Petitioner.
c. Petitioner may then file a reply brief, if he wishes to do
so, within thirty (30) days after Respondent has filed a response brief.
3. If Respondent files a motion in lieu of an answer, then the
parties should abide by the following briefing schedule:
a. Petitioner shall have thirty (30) days following the
filing of Respondent’s dispositive motion and accompanying brief
within which to file a brief in opposition to that motion.
b. Respondent shall have fifteen (15) days following the
filing of Petitioner’s opposition brief within which to file a reply
brief, if any.
Pursuant to Civil L.R. 7(f), the following page limitations apply:
briefs in support of or in opposition to the habeas petition or a dispositive
motion filed by Respondent must not exceed thirty pages and reply briefs
must not exceed fifteen pages, not counting any caption, cover page, table
of contents, table of authorities, and/or signature block;
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, as well
as a Memorandum of Understanding entered into between the Wisconsin
Department of Justice and the U.S. District Clerk of Court for the Eastern
District of Wisconsin, a copy of the amended petition and this Order have
been sent via a Notice of Electronic Filing (“NEF”) to State of Wisconsin
Respondent through the Attorney General for the State of Wisconsin
through the Criminal Appeals Unit Director and lead secretary. The
Department of Justice will inform the Court within twenty-one (21) days
from the date of the NEF whether the Department will not accept service of
process on behalf of Respondent, the reason for not accepting service for
Respondent, and the last known address of Respondent. The Department
of Justice will provide the pleadings to a Respondent on whose behalf it has
agreed to accept service of process.
Dated at Milwaukee, Wisconsin, this 26th day of May, 2023.
BY THECOURT:
VA AV Se
Shen...)
OV fe
J.R. Stacia eller
U.S: District Judge
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