Wilson v. Eplett

                UNITED STATES DISTRICT COURT                            
               EASTERN DISTRICT OF WISCONSIN                            


GENERAL GRANT WILSON,                                                   

             Petitioner,                                                
                                      Case No. 23-cv-199-pp             
   v.                                                                   

WARDEN CHERYL EPLETT,                                                   

             Respondent.                                                


ORDER SCREENING HABEAS PETITION (DKT. NO. 1) AND REQUIRING              
    RESPONDENT TO FILE ANSWER OR RESPONSIVE PLEADING                    


   On  February 13, 2023, the petitioner, who is incarcerated at Oshkosh 
Correctional Institution and is represented by counsel, filed a petition for writ 
of habeas corpus under 28 U.S.C. §2254, challenging his 1993 conviction for 
first-degree intentional homicide while possessing a dangerous weapon and 
attempted first-degree intentional homicide while possessing a dangerous  
weapon. Dkt. No. 1. He has paid the $5 filing fee. This order screens the 
petition under Rule 4 of the Rules Governing Section 2254 Cases. Because it 
does not plainly appear from the face of the petition that the petitioner is not 
entitled to relief, the court will order the respondent to answer or otherwise 
respond.                                                                  
I.   Background                                                           
   The petition references Milwaukee County Case No. 93-CF-001541. The  
court has reviewed the publicly available docket in that case. See State of 
Wisconsin v. Wilson, Milwaukee County Case No. 93-CF-001541 (available at 
https://wcca.wicourts.gov/). It indicates that on April 26, 1993, the State of 
Wisconsin filed a criminal complaint against the petitioner. Id. On or around 
July 8, 1993, a jury found the petitioner guilty of first-degree intentional 
homicide and attempted first-degree intentional homicide. Id.             
   The court takes the rest of the procedural history of the case from the 
exhibits attached to the petition. On June 17, 1996, the circuit court denied 
the petitioner’s motion for post-conviction relief. Dkt. No. 1 at 135-37. On 
September 16, 2010, the court of appeals granted the petitioner’s motion for 
habeas corpus and reinstated his appeal rights. Id. at 138-40. On July 12, 
2011, the circuit court denied the petitioner’s motion for post-conviction relief. 
Id. at 141-44. On October 22, 2013, the court of appeals summarily reversed 
the judgment of conviction and order denying postconviction relief and    
remanded the case for further proceedings. Id. at 15-25. On May 12, 2015, the 
Wisconsin Supreme Court reversed the court of appeals’ decision. Id. at 64-
131. The petitioner filed a petition for certiorari with the United States Supreme 
Court, which the Supreme Court denied on March 7, 2016. Id. at 133. While 
the petition for certiorari remained pending in the United States Supreme 
Court, the Wisconsin Supreme Court vacated its remittitur and remanded to 
the court of appeals for consideration of other issues raised in the petitioner’s 
brief. Id. On November 21, 2016, the court of appeals remanded the case to the 
circuit court for a hearing on the petitioner’s ineffective assistance of counsel 
claim. Id. at 26-30.                                                      
   On September 7, 2017, the petitioner requested a new trial based on  
ineffective assistance of trial counsel, id. at 154, which the circuit court denied 
on January 8, 2018, id. at 145-152. On January 12, 2021, the court of appeals 
affirmed the denial of the motion for a new trial. Id. at 32-63. On August 11, 
2021, the Wisconsin Supreme Court denied the petition for review. On March 
21, 2022, the United States Supreme Court denied the petition for certiorari. Id. 
at 134.                                                                   
II.  Rule 4 Screening                                                     
   A.   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 as to the merits of any of the petitioner’s claims. 
Rather, the court reviews the petition and exhibits to determine whether the 
petitioner alleges 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 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, the 
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 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). 
   B.   The Petition                                                    
   The petitioner raises five grounds for relief. Ground One alleges that the 
petitioner’s conviction and sentence were unconstitutional because “he did not 
receive a full and fair trial before a jury where he was rushed to trial without 
sufficient opportunity to investigate, to prepare, and to prepare his full 
defense.” Dkt. No. 1 at 7. Ground One further alleges that the trial court 
unconstitutionally refused a valid and necessary defense. Id. Ground Two  
reiterates some of what is described in Ground One; it alleges that the   
petitioner was unconstitutionally deprived of the opportunity to present a 
complete defense because he was not permitted to bring a valid third-party-
perpetrator defense. Id. at 8. Ground Three similarly alleges that the petitioner 
was unconstitutionally denied the opportunity to present a complete defense—
his third-party-perpetrator defense—to prove that he did not commit the crime 
and was deprived of the opportunity to fully cross-examine the key witness and 
present other witnesses. Id. at 9. Ground Four raises an ineffective assistance 
of trial counsel claim. Id. at 10. Ground Five alleges that the appellate court 
applied a standard of prejudice for the petitioner’s ineffectiveness of counsel 
claim that is contrary to federal law. Id. at 156.                        
   The petitioner has stated claims that are cognizable on federal habeas 
review. The court construes Ground One’s allegation that the petitioner did not 
receive a “full and fair trial” as alleging a due process violation, a claim that is 
cognizable on federal habeas review. See Shipp v. Deuth, 38 F. App’x 309, 310 
(7th Cir. 2002) (reviewing due process claim that petitioner did not have 
sufficient time to prepare a defense). Grounds Two and Three allege that the 
trial court unconstitutionally prevented the petitioner from presenting a 
complete defense. Such claims are cognizable on federal habeas review. See 
e.g., Holmes v. South Carolina, 547 U.S. 319 (2006) (reviewing claim that trial 
court wrongfully excluded petitioner’s third-party guilt evidence). Grounds Four 
and Five are more straightforward: an ineffective assistance of trial counsel 
claim and a claim that the court of appeals applied a standard contrary to 
federal law. Both are cognizable on federal habeas review. Lee v. Kink, 922 
F.3d 772, 774 (7th Cir. 2019) (reviewing ineffective assistance of trial counsel 
claim); Morgan v. Calderone, 353 F. App’x 53, 55-56 (7th Cir. 2009) (reviewing 
claim that state appellate court misapplied federal law).                 
   Though the petitioner is challenging a thirty-year-old conviction, the 
court cannot say that it is clear from the face of the petition that it was not 
timely filed, particularly in light of the fact that in 2010, the court of appeals 
reinstated the petitioner’s right to a direct appeal. Dkt. No. 1 at 138-40. 
Because the limitation period is an affirmative defense and the State has the 
burden of proving that a petition was not timely filed, Gildon v. Bowen, 384 
F.3d 883, 886 (7th Cir. 2004), the court cannot conclude at the screening stage 
that the petition was not timely filed.                                   
   Without the benefit of examining the entire record of the petitioner’s 
post-conviction motions in the Wisconsin state courts, however, it is premature 
for the court to consider whether the petitioner has properly exhausted all his 
grounds for federal habeas relief. Failure to exhaust, like the limitations period, 
is an affirmative defense more appropriately raised and argued by the     
respondent. See Perruquet v. Briley, 390 F.3d 505, 517 (7th Cir. 2004). The 
court will allow the petitioner to proceed and order the respondent to answer or 
otherwise respond.                                                        
III.  Conclusion                                                          
   The court ORDERS that the petitioner may proceed on the grounds in   
his habeas petition.                                                      
   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  17th day of July, 2023. 
                                  BY THE COURT: 

                                  Chief United States District Judge