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Talbot v. Jenkins

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

JOHN W. TALBOT, Petitioner, v. 09-cv-28-bbc LARRY L. JENKINS, Warden, Redgranite Correctional Institution, Respondent. ORDER

On February 6, 2009, this court entered an order staying this petition for a writ of habeas corpus while petitioner John Talbot completed the process of exhausting his state court remedies for claims of ineffective assistance of appellate counsel. Respondent now moves to lift the stay on the ground that petitioner failed to comply with conditions that were attached to the order concerning when petitioner must return to federal court. Petitioner reads the terms of the stay differently and insists that he has complied with them. I find that it is unnecessary to decide this issue because it is plain that the stay was entered improvidently in the first place. As discussed in more detail below, at the time the stay was entered, petitioner had enough time remaining on his federal habeas clock such that he was not at risk of losing his chance at federal review of his claims without an order staying his petition. Although petitioner has used some of that time since the stay was entered, enough of it remains to allow him to return to federal court after he completely exhausts his state court remedies with respect to the post conviction motion that is now pending in the Circuit Court for Wood County. Accordingly, the stay will be vacated.

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BACKGROUND Petitioner initially filed an application for habeas corpus relief on September 25, 2008, challenging his June 17, 2003 conviction in the Circuit Court for Wood County for homicide by use of a vehicle while intoxicated. Talbot v. Jenkins, 08-cv-561-slc, dkt. #1. Reviewing the petition preliminarily, United States Magistrate Judge Stephen Crocker determined that it contained only one exhausted claim: the trial court had not conducted a thorough colloquy with petitioner to insure that he had knowingly waived his rights by entering into a plea agreement (claim 4 of the petition). Id., Order, Sept. 29, 2008, dkt. #2. He found that petitioner had not exhausted his state court remedies with respect to the following claims: 1) the state breached the plea agreement by altering it after he had signed it; 2) the altered plea agreement was ambiguous; 3) his trial counsel was ineffective for not explaining the plea agreement, ascertaining whether petitioner understood it and altering it after petitioner had signed it; and 4) his appellate counsel was ineffective for failing to raise petitioner's first three claims on appeal. Id. After reviewing Wisconsin's post-trial remedies, the magistrate judge determined that avenues of relief remained available to petitioner in the state courts "through which he could present his claim that his appellate or postconviction lawyer was ineffective." Id., at 3. Accordingly, the magistrate judge determined that the petition was a "mixed" petition that had to be dismissed unless petitioner decided to amend his petition and delete the unexhausted claims. The magistrate judge noted that in making his decision, petitioner should take into account the one-year limitations period imposed by the Antiterrorism and 2

Death Penalty Act, 28 U.S.C.

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