Jones v. Berge

• Decision Date: 19 May 2000
• Docket Number: No. 00-C-0130.,00-C-0130.
• Parties: Dennis E. JONES, Plaintiff, v. Gerald BERGE, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

101 F.Supp.2d 1145

Dennis E. JONES, Plaintiff, v. Gerald BERGE, Defendant.

No. 00-C-0130.

United States District Court, E.D. Wisconsin.

May 19, 2000.

COPYRIGHT MATERIAL OMITTED

Dennis E. Jones, pro se.

Mary Burke (Ass't Atty. Gen.-State of WI), Madison, WI, for Defendant.

DECISION AND ORDER

ADELMAN, District Judge.

On January 14, 2000, Dennis E. Jones, incarcerated at the Supermax Correctional Institute at Boscobel, Wisconsin, filed this petition pursuant to 28 U.S.C. § 2254, asserting that his state court conviction was imposed in violation of the Constitution.¹

In keeping with Rule 4 of the Rules Governing § 2254 Cases, I must give the case prompt preliminary consideration as follows:

If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified. Otherwise the judge shall order the respondent to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.

Rule 4, Rules Governing § 2254 Cases. During my initial Rule 4 review of habeas petitions, I generally look to see whether the petitioner has exhausted available state remedies and has set forth cognizable constitutional or federal law claims.

Jones sets forth six categories of claims for habeas relief. Because he concedes that two categories — deprivation of the right to counsel on appeal, and ineffective assistance of counsel on appeal — have not been exhausted in the state courts, there is no need to assess whether he has set forth cognizable claims.

I. EXHAUSTION

An application for writ of habeas corpus from a person in state custody shall not be granted unless it appears that (a) the applicant has exhausted state remedies, or (b) there is no available state corrective process, or circumstances exist that render such process ineffective to protect the applicant's rights. See 28 U.S.C. § 2254(b)(1). A claim is considered exhausted only if the petitioner has provided the state courts with a full and fair opportunity to review his claims. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). A specific claim is not considered exhausted if the petitioner "has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). This generally requires appealing state court decisions all the way to the state supreme court. See O'Sullivan, 526 U.S. at 847, 119 S.Ct. 1728. This doctrine of exhaustion allows state courts the "initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (internal quotation marks omitted).

A petition for writ of habeas corpus should be dismissed without prejudice if state remedies are not exhausted as to any one of the petitioner's claims. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Cruz v. Warden of Dwight Correctional Ctr., 907 F.2d 665, 667 (7th Cir.1990). The rule of Rose v. Lundy is to be "strictly enforced." Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In this case, Jones asserts that he raised the issues asserted here in the state courts, first in a postconvicton motion filed under Wis. Stat. §§ 809.30, 974.02; then to the state Court of Appeals; and then to the state Supreme Court. (Pet. ¶¶ 12-13, 15.) However, as mentioned above, Jones also acknowledges that he has not presented two of his claims—denial of appellate counsel and ineffective assistance of appellate counsel — to the state courts. (Mot. to Stay ¶ 4.) Thus, Jones's petition is a so-called "mixed" or "partially exhausted" habeas petition, presenting both exhausted and unexhausted claims.

II. APPROPRIATE RESPONSE TO PARTIAL EXHAUSTION

If I applied the rule of Rose v. Lundy in a mechanical rather than sensible way, I would do no more than dismiss the case as presenting a mixed or partially exhausted petition. To be sure, the dismissal would be without prejudice to Jones's filing a new federal habeas petition once he had exhausted his currently unexhausted claims in the state courts.

However, under current habeas corpus law, Jones would be time barred from making such a renewed petition. This is because, in 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA") to tighten many procedural aspects of habeas relief in the federal courts. One of AEDPA's new restrictions imposed, for the first time, a time limit requiring that petitions be presented to the federal courts within a year of a trigger date, which, for most purposes, is the expiration of direct review or the time for seeking such direct review of the petitioner's conviction. See 28 U.S.C. § 2244(d)(1)(A).

A. Calculation of Filing Deadline Under § 2244(d)(1)(A)

I consider the filing deadline to be the expiration of time to petition the United States Supreme Court for certiorari, which is ninety days following the decision of the state supreme court. See Sup.Ct. R. 13.1. These ninety days should be included within "the time for seeking such [final direct] review" provided in § 2244(d)(1)(A). A line of Supreme Court cases holds that direct review is final only after the time for seeking certiorari with that court has expired. See Griffith v. Kentucky, 479 U.S. 314, 321, n. 6, 107 S.Ct. 708, 93 L.Ed.2d 649 ("By `final,' we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.") (citing United States v. Johnson, 457 U.S. 537, 542 n. 8, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) (citing Linkletter v. Walker, 381 U.S. 618, 622 n. 5, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965))); Allen v. Hardy, 478 U.S. 255, 258 n. 1, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (per curiam) ("By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed ...") (quoting Linkletter, 381 U.S. at 622 n. 5, 85 S.Ct. 1731). See also Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) ("[T]he process of direct review ..., if a federal question is involved, includes the right to petition this Court for a writ of certiorari."); Bell v. Maryland, 378 U.S. 226, 232, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964) ("In the present case, the [state court judgment] is not yet final, for it is on direct review in this Court.").

The Seventh Circuit has recognized the question of whether this line of cases controls § 2244(d)(1)(A), but so far has not answered it. See Gendron v. United States, 154 F.3d 672, 674 & n. 2 (7th Cir.1998) (holding that period to apply for certiorari is not included for federal prisoners under similar but different statute, 28 U.S.C. § 2255, but expressly stating, "we do not address the question of whether a prisoner who filed for leave to appeal to the state supreme court would have the time for filing certiorari with the United States Supreme Court included in his `direct review' for the purposes of § 2244") (emphasis added), cert. denied sub nom. Ahitow v. Glass, ___ U.S. ___, 119 S.Ct. 1758, 143 L.Ed.2d 790 (1999); Freeman v. Page, 208 F.3d 572, 573 (7th Cir.2000) (same).

Those circuits which have addressed the question have uniformly found that this ninety-day period is included. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir.1998) ("[W]hen [the] time to seek direct review in the United States Supreme Court by writ of certiorari expire[s]."); Kapral v. United States, 166 F.3d 565, 575 (3d Cir.1999); United States v. Torres, No. 98-7657, 211 F.3d 836, 838 (4th Cir.) (following Seventh Circuit's decision in Gendron relating to federal prisoners' deadline under § 2255, but distinguishing § 2244(d)(1)(A)); United States v. Thomas, 203 F.3d 350 (5th Cir.2000); United States v. Arrevalo Garcia, 210 F.3d 1058, 1060 (9th Cir.2000); United States v. Lacey, No. 98-3030, 162 F.3d 1175 (table), 1998 WL 777067, at *1 (10th Cir. Oct.27, 1998). See also Adams v. United States, 173 F.3d 1339, 1342 (11th Cir.1999) ("The Third and Tenth Circuits have held that a judgment of conviction becomes final when the Supreme Court denies certiorari or the time expires for seeking certiorari."). I agree with these circuits that under Griffith v. Kentucky the controlling language, "the expiration of the time for seeking such [final] review," § 2244(d)(1)(A), must include the ninety days for seeking certiorari in the United States Supreme Court.

In Jones's case, the petition asserts that the state Supreme Court denied his petition for review on December 8, 1998. His deadline for filing a federal habeas action, therefore, would be the next day,² December 9, 1998, plus the ninety-day period to file for certiorari in the United States Supreme Court, plus a year under § 2244(d)(1)(A). I calculate this date as approximately March 9, 2000, which lapsed more than two months ago. A renewed habeas petition filed in federal district court as early as today would therefore be too late under § 2244(d)(1)(A).

B. Non-Availability of Tolling Under § 2244(d)(2)

To be sure, AEDPA allows a petitioner's efforts to seek collateral relief in the state courts to toll (that is, extend) the one-year deadline for filing a federal habeas petition. See 28 U.S.C. § 2244(d)(2).³ Nonetheless, a mixed petition filed in federal court does not toll the deadline under § 2244(d)(2). See Kethley v. Berge, 14 F.Supp.2d 1077, 1079 (E.D.Wis.1998) ("time is not tolled while an improperly filed federal habeas petition is gathering dust on district court shelves"). See also Jones v. Morton, 195 F.3d 153, 158 (3rd Cir.1999) ("[W]e are persuaded by the analysis of the majority of Cou...