Mitchell v. McCaughtry
| Decision Date | 23 September 2003 |
| Docket Number | No. 01-C-1116.,01-C-1116. |
| Parties | Cardell C. MITCHELL, Petitioner, v. Gary R. MCCAUGHTRY, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Cardell C. Mitchell, Pro se.
Christian R. Larsen, Madison, WI, for Respondent.
DECISION AND ORDER
Animated by the concern that multiple collateral attacks on state criminal convictions commenced long after trial harmed the states' interest in finality, Congress enacted the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). ADEPA established a one year statute of limitations on applications for habeas corpus relief by state prisoners, 28 U.S.C. § 2244(d); and, subject to certain narrow exceptions, a limit of one application per conviction, 28 U.S.C. § 2244(b)(2). Thus, for the most part, state prisoners are now afforded only one opportunity to obtain federal habeas relief.
It is therefore essential that prisoners receive a full and fair opportunity to present their claims during that proceeding. The present case involves two potential impediments to that opportunity.
First, AEDPA's statute of limitations creates tension with the pre-AEDPA requirement that petitions containing "unexhausted" claims, i.e. those not (yet) presented to the state courts, be dismissed without prejudice. See Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
Prior to the advent of AEDPA, dismissal without prejudice to the filing of a new, exhausted petition caused no detriment to the petitioner, because there was no time limitation on the filing of a federal habeas petition. AEDPA's one-year statute of limitations, however, has rendered outright dismissal perilous to some litigants, because petitioners ... may find themselves time-barred when they attempt to resubmit their exhausted claims to the district court.
Anthony v. Cambra, 236 F.3d 568, 573 (9th Cir.2000).1 A solution to this problem (appropriately employed in the present case) is to stay the habeas petition while the prisoner presents his unexhausted claim(s) to the state courts; following exhaustion, the prisoner can re-activate the petition and obtain the one full and fair opportunity for habeas review to which he is entitled.
Second, AEDPA's limitations may affect a prisoner's ability to amend his petition. For example, if a petition is amended more than one year after the conviction being challenged became final, the amended claims may be considered untimely.2 To prevent this from occurring, thus enabling prisoners to receive one full and fair opportunity to pursue their federal claims, habeas petitioners must be allowed to amend their petitions consistent with Fed. R.Civ.P. 15, like any other civil litigant. They must be allowed to amend as a matter of course under Rule 15(a), and, for purposes of the statute of limitations, any amended claims should "relate back" to the full extent allowed by Rule 15(c).
With these principles in mind, I consider the petition of Cardell C. Mitchell.
Petitioner Cardell C. Mitchell, a Wisconsin state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction in Milwaukee County Circuit Court, following a jury trial, of first degree reckless homicide and three counts of first degree recklessly endangering safety, for which he was sentenced to 52 years in prison. The convictions stemmed from an incident in which petitioner, apparently without provocation, sprayed an automobile with gun fire at a gas station, killing one of the occupants.
Petitioner appealed, but his appointed appellate counsel filed a no merit report, to which petitioner did not respond.3 The court of appeals adopted the no merit report, summarily affirming his convictions. Petitioner filed a pro se petition for review in the state supreme court, which was denied.4
Petitioner then filed a pro se motion for post-conviction relief in the state trial court pursuant to Wis. Stat. § 974.06, arguing that his trial lawyer was ineffective. The trial court denied the motion without a hearing. The court of appeals affirmed, holding that the issues raised had either been adjudicated previously5 or were procedurally barred by State v. Escalona-Naranjo, 185 Wis.2d 168, 181, 517 N.W.2d 157 (1994) (). The state supreme court denied petitioner's request for review.
Petitioner next sought habeas relief in this court. He asserted seven grounds for relief: (1) that he received ineffective assistance of counsel at trial; (2) that the prosecutor committed misconduct by failing to disclose evidence; (3) that perjured testimony was presented at his trial; (4) that tainted evidence was used at his trial; (5) that the charge against him was amended on the day of trial, impeding his ability to prepare a defense; (6) that the trial judge denied his right to conflict-free counsel; and (7) that his sentence was excessive and no sentencing guidelines were used. Petitioner requested that the petition be stayed while he litigated a motion alleging ineffective assistance of appellate counsel in state court pursuant to State v. Knight, 168 Wis.2d 509, 520, 484 N.W.2d 540 (1992) ().6
The matter was assigned to a magistrate judge for pre-trial purposes. However, the parties did not consent to the full exercise of jurisdiction by the magistrate judge.
On November 5, 2001, the magistrate screened the petition pursuant to Rule 4 of the Rules Governing Section 2254 Proceedings, ordering respondent to file an answer. He denied the request to stay proceedings while petitioner litigated his Knight motion because petitioner had not included ineffective assistance of appellate counsel among his grounds for relief; thus, he concluded, no stay to permit exhaustion was necessary.
Respondent was served with the petition on or about November 8, 2001, and, following an extension of time, filed an answer and motion to dismiss on December 26, 2001. Respondent argued that petitioner had procedurally defaulted part of his ineffective assistance of trial counsel claim by failing to properly raise it in state court. In affirming the denial of his § 974.06 motion, the state court of appeals noted that it had addressed two aspects of that claim on direct appeal and would not do so again. To the extent that petitioner's motion raised new issues, the court held that they were barred by Escalona-Naranjo.
Respondent argued that petitioner had procedurally defaulted his second, third, and sixth claims because they were not raised in appellate counsel's no merit report or in any response to the no merit report from petitioner. Respondent further argued that petitioner failed to present any of his claims to the Wisconsin Supreme Court in his pro se petition for review on direct appeal, resulting in default of all of them. Because petitioner had procedurally defaulted, his claims could be heard in this court only if he could establish (1) cause and prejudice, or (2) a fundamental miscarriage of justice, i.e. the conviction of an innocent man. Respondent argued that petitioner could establish neither.
Meanwhile, on December 21, 2001, petitioner moved to amend his petition,7 raising additional grounds for relief: (8) that he was denied the right to appeal; (9) that he received ineffective assistance of appellate counsel; (10) that the criminal complaint was defective; (11) that his jury was biased; (12) that the court commissioner who presided over his initial appearance and preliminary hearing made an improper comment; and (13) that the district attorney referred to his right to remain silent during the trial. He asked the court to hold the petition in abeyance while he exhausted state remedies pertaining to the amended claims.
On December 27, 2001, the magistrate ordered petitioner to respond to respondent's motion to dismiss within 21 days. On January 18, 2002, the magistrate granted petitioner an extension of time to respond to the motion to dismiss and also ordered respondent to respond to petitioner's motion to amend.
Petitioner filed his response on February 6, 2002, arguing that his attorneys had rendered ineffective assistance, that he had been unable to respond to appellate counsel's no merit report because he did not have the trial transcripts, and that he was actually innocent of the crime. Petitioner also requested appointment of counsel.
On February 15, 2002, respondent responded to petitioner's motion to amend, arguing that leave to amend should not be granted because it would be futile, or in the alternative that the amended petition be dismissed, because all of the additional claims petitioner sought to raise had been procedurally defaulted or state court remedies had not been exhausted.8
On January 9, 2003, petitioner wrote the court requesting that it stop his anticipated transfer from Waupun Correctional Institution to Columbia Correctional Institution. The transfer occurred, and on January 29, 2003, petitioner requested an order that he be sent back to Waupun.
On March 24, 2003, the magistrate issued a decision on the non-dispositive motions and a recommendation on respondent's motion to dismiss. He denied petitioner's motion to amend, concluding that it came too late to be allowed as a matter of course. He denied leave to amend because the amended claims did not "relate back" to the original petition under Fed.R.Civ.P. 15(c), making them untimely and rendering the amendment futile. He denied as moot the motion to hold the case in abeyance while petitioner exhausted the amended claims.
The magistrate then recommended that respondent's motion...
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