Tyler v. McCaughtry

293 F.Supp.2d 920

Matthew TYLER, Petitioner, v. Gary R. McCAUGHTRY, Respondent.

No. 03-C-0514.

United States District Court, E.D. Wisconsin.

November 12, 2003.

Matthew Tyler, pro se.

Karla Keckhaver, Wisconsin Department of Justice, Office of the Attorney General, Madison, WI, for Respondent.

DECISION AND ORDER

ADELMAN, District Judge.

Petitioner Matthew Tyler, a Wisconsin state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming that his right to due process was violated when a prison disciplinary committee ("committee") revoked his good time credits. He alleges, among other things, that the committee was not impartial, that it denied him the opportunity to call witnesses, and that its decision was not supported by sufficient evidence. Respondent now moves to dismiss based on procedural default. Petitioner does not dispute that he defaulted his federal constitutional claim by failing to properly present it to the state courts but argues that the default should be excused based on cause and prejudice.

I. BACKGROUND

While he was incarcerated at the Dodge Correctional Institution ("DCI"), petitioner was convicted by the committee of sexually assaulting his cellmate. As a consequence, he lost good time credits, which had the effect of extending his mandatory release date by forty-five days. He pursued the administrative remedies provided by the prison system but failed to obtain relief.

Petitioner then petitioned for a writ of certiorari in state circuit court. Pursuant to Wis. Stat. § 893.735(2), he was required to file the petition within forty-five days of the date on which he exhausted administrative remedies, which was May 17, 2001. Thus, his certiorari deadline was July 2, 2001. State ex rel. Tyler v. Bett, 257 Wis.2d 606, 609, 652 N.W.2d 800 (Ct.App.), review denied, 257 Wis.2d 120, 653 N.W.2d 891 (2002).

On June 16, 2001, petitioner deposited his petition in DCI's mailbox, and the court received it on June 29, 2001. On the same day, however, the court returned the petition to him because he had failed to include various documents relating to the prison administrative process required by Wis. Stat. § 801.02(7)(c), and because he had enclosed a check for $89.00 instead of the required filing fee of $124.00. Petitioner received his papers back on July 5, 2001. Tyler, 257 Wis.2d at 610, 652 N.W.2d 800.

On or about July 13, 2001, petitioner refiled his petition with the necessary supporting documents and the correct filing fee. However, the court then dismissed the petition because the forty-five day limitation period had elapsed. Petitioner appealed, arguing that his petition should be considered timely under the "mailbox" rule established in State ex rel. Shimkus v. Sondalle, 239 Wis.2d 327, 339, 620 N.W.2d 409 (Ct.App.2000), which held that the forty-five day time limit is tolled when a prisoner deposits a petition in the prison mailbox. Alternatively, he argued that the untimeliness of his petition should be excused because the legal resources at DCI were inadequate to enable him to discover the rules governing certiorari petitions. Tyler, 257 Wis.2d at 608, 652 N.W.2d 800.

The court of appeals rejected petitioner's mailbox rule argument, stating that the rule applied only to completed petitions accompanied by the proper filing fee. Id. at 609, 652 N.W.2d 800. The court also rejected petitioner's argument based on the inadequacy of the legal resources at DCI, stating that the mailbox rule "was not intended to spawn, nor can it support, open-ended inquiries into the adequacy of prison legal resources, or discretionary judgments as to whether certain facts and circumstances warrant relief from statutory deadlines while others do not." Id. at 618, 652 N.W.2d 800.

Petitioner unsuccessfully sought review in the state supreme court and then commenced the present action. Respondent moves to dismiss, arguing that the errors in petitioner's state court filings constituted procedural default of his due process claims. Petitioner responds that his errors should be excused because the inadequacy of the legal resources at DCI prevented him from discovering what papers needed to be included with his petition and what the correct filing fee was.

II. STANDARD OF REVIEW

Rule 11 of the Rules Governing Section 2254 Cases permits federal courts to apply the Federal Rules of Civil Procedure to petitions for habeas corpus when appropriate. Under the Federal Rules of Civil Procedure, motions to dismiss for failure to state a claim upon which relief can be granted are analyzed under Rule 12(b)(6). Under Rule 12(b)(6), if matters outside the pleadings are presented and not excluded by the court, the motion shall be treated as one for summary judgment under Rule 56, and all parties must be given an opportunity to present any material pertinent to the motion. In the present case, both parties present material outside the pleadings, and respondent gave notice to petitioner that Rule 56 would apply. Therefore, I will apply summary judgment standards. See Teague v. Scott, 60 F.3d 1167, 1169-70 (5th Cir.1995) (applying summary judgment standards in case brought under § 2254); see also Taylor v. United States, 287 F.3d 658, 661 (7th Cir.2002) (discussing use of "collateral-attack analog to summary judgment" in § 2255 case).

Summary judgment is required "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). Although summary judgment is a useful tool for isolating and terminating factually unsupported claims, Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), courts should act with caution in granting summary judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When the evidence presented shows a dispute over facts that might affect the outcome of the suit under governing law, summary judgment must be denied. Id. at 248, 106 S.Ct. 2505.

In ruling on a motion for summary judgment, a court may not make credibility determinations or weigh the evidence. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003). The court must construe the record and draw all reasonable inferences from it in a light most favorable to the nonmoving party. See, e.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).

III. DISCUSSION

A. Procedural Default

A federal court may entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court if he is in custody in violation of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). However, a federal court will not review a federal constitutional claim if the state court decided the case "on a state procedural ground that is independent of the federal question and adequate to support the judgment." Moore v. Bryant, 295 F.3d 771, 774 (7th Cir.2002). The independent and adequate state ground doctrine bars federal habeas relief when the state court declined to address the prisoner's federal claims because the prisoner defaulted those claims by failing to meet a state procedural requirement. Id.

To preclude federal habeas review under this doctrine, the state court's decision must be both "independent" and "adequate" to support that court's judgment. Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir.2000). A state court's decision is "independent if that court actually ... relied on the procedural bar as an independent basis for its disposition of the case." Id. (internal quotation marks omitted). The last state court to render a judgment in the case must have clearly and expressly stated that its judgment rests on a state procedural bar. Id.

"A state court's finding of procedural default is an adequate ground that would preclude federal review only if the procedural rule applied by the state court is `firmly established and regularly followed.'" Id. (quoting James v. Kentucky, 466 U.S. 341, 348-51, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984)). The procedural rule must be applied by the state courts in a "consistent and principled way"; a rule that is "infrequently, unexpectedly, or freakishly" applied is not an adequate state ground that bars federal habeas review. Id. "Likewise, if a prisoner would not have been deemed to have been apprised of [the rule's] existence at the time he omitted the procedural step, the state court's judgment is not an adequate ground that would bar federal habeas review." Id. (internal quotation marks omitted).¹

However, the federal court may excuse a petitioner's procedural default and consider the merits of his claim if the petitioner can show "cause" for his failure and "prejudice" if the federal court refuses to review the claim, or that the federal court's failure to review the claim would result in a fundamental miscarriage of justice. Howard v. O'Sullivan, 185 F.3d 721, 726 (7th Cir.1999). In the present case, petitioner argues that his failure to comply with the state procedural rules governing the filing of his state court certiorari petition must be excused because he can show cause and prejudice.²

B. Cause and Prejudice

1. Cause

"The Supreme Court has defined cause sufficient to excuse procedural default as `some objective factor external to the defense' which precludes petitioner's ability to pursue his claim in state court." Harris v. McAdory, 334 F.3d 665, 668 (7th Cir. 2003) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). Cause can be established "by showing interference by officials or that the factual or legal basis for a claim was not reasonably available." Id. Several courts have recognized...