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Seventh Circuit: Four-Year Delay in Filing Appeal Excused Habeas Exhaustion Requirement Because Any Further Attempts for Postconviction Remedies in State Court Would Have Been Futile

by Dale Chappell

Waiting more than four years for a Wisconsin state court to hear a defendant’s appeal was “ineffective to protect the rights secured by the United States Constitution,” the U.S. Court of Appeals for the Seventh Circuit ruled, allowing a federal habeas corpus petition to proceed without exhausting state-court remedies because doing so would have been futile.

Marvin Carter pleaded guilty in 2017 to a drug and firearm charge in a Wisconsin state court. As part of the plea deal, the prosecutor had agreed to recommend a six years prison sentence. But at sentencing, the prosecutor instead told the judge, “I so wish we would have allowed this to proceed through to the end of the trial and let the jury make their verdict because then I would have had four counts on the table today.” Taking the hint, the judge sentenced Carter to nine years in prison, not the six years in the plea agreement.

Carter then filed the necessary notice for an appeal (“Notice”), a process that has been called “unusual” as far as state appellate proceedings go. See Huusko v. Jenkins, 556 F.3d 633 (7th Cir. 2009) (“Wisconsin combines some aspects of direct and collateral review.”). He first had to file his Notice within 20 days of sentencing that he intended to file a “postconviction motion,” not an appeal. Wisconsin Statute §§ 974.02 and 809.30(2)(b); see, e.g., Page v. Frank, 343 F.3d 901 (7th Cir. 2003) (describing in detail the Wisconsin statutory scheme). What’s also unusual is that the trial court that imposed the sentence hears the postconviction motion prior to an appeal. Only after the motion gets dismissed may Carter file an actual direct appeal.

Carter was appointed counsel for the postconviction process. Notably, it took the court clerk and the court reporter 10 months to locate and send the trial transcripts to Carter’s counsel, but by statute, the process should have taken no more than 60 days. See § 809.30(2)(g). And by 2019, counsel had filed 12 motions for extensions of time due to his claimed workload or other reasons not caused by Carter, each time waiting until the last day to do so. Each motion was perfunctorily granted by the Wisconsin Court of Appeals, and to make matters worse, the trial court itself imposed three more extensions of time.

Given the statutory deadlines for each step in the overall process, a postconviction motion ordinarily should be filed about five months after filing the Notice. However, after about three years, through no fault of his own, Carter’s motion still hadn’t been filed.

He eventually gave up and filed a pro se habeas corpus petition in the U.S. District Court for the Western District of Wisconsin, under 28 U.S.C. § 2254, asserting the same claims he intended to raise in the state court regarding his sentence. The District Court, however, noted that he hadn’t exhausted the remedies available in state court as required by 28 U.S.C. § 2254(b)(1)(A). Carter acknowledged that he hadn’t exhausted the state remedies that were ostensibly available but argued that he was trapped in a seemingly endless cycle of delay from which there was no escape caused by multiple extension requests by his counsel and that the state Court of Appeals was complicit in causing his plight by rubber stamping every extension request.

The District Court instructed the parties to brief whether Carter should be excused from any further attempts to exhaust under the exceptions contained in § 2254(b)(1)(B)(i)-(ii). Close to another year passed without any movement in Carter’s state court case. In total, about four years had passed since he filed his Notice, yet his postconviction motion still hadn’t been filed. The District Court found the delay to be “inordinate” but nonetheless instructed Carter to give the Wisconsin court one final opportunity to act. It dismissed his habeas petition without prejudice but granted a certificate of appealability.

By the time the Seventh Circuit heard Carter’s case, his counsel finally filed his postconviction motion but then withdrew from the case, as did his replacement. Carter was represented by his third public defender as he awaited the decision of the trial court, which itself had requested two extensions of time in issuing its decision that were granted by the Wisconsin Court of Appeals—which also issued a third extension of its own accord.

Habeas law provides that a state prisoner must exhaust any postconviction remedies in state court before a federal court may hear his federal habeas petition. § 2254(b)(1). But there are some exceptions. That same section excuses exhaustion if there’s an “absence of available state correction process” or “circumstances exist that render such process ineffective to protect the rights of the applicant.” § 2254(b)(1)(B)(i)-(ii). The question before the Court was whether any exceptions to the exhaustion requirement applied because of the numerous delays in the state courts.

Initially, the Court had to determine whether it had jurisdiction to hear the case. The State argued that because the District Court’s dismissal was without prejudice, it wasn’t a “final” decision to allow an appeal. Under 28 U.S.C. § 1291, federal Courts of Appeals have jurisdiction over all “final” decisions of the District Courts. The Court acknowledged that a dismissal without prejudice is usually done to allow a petitioner to fix a deficiency, like exhaustion of state remedies, and then file again, so ordinarily, it’s not final. See Maddox v. Love, 655 F.3d 709 (7th Cir. 2011). As such, a dismissal without prejudice is generally not considered a final decision. See Kaba v. Stepp, 458 F.3d 678 (7th Cir. 2006).

But there are exceptions to the foregoing general rule, i.e., “without prejudice” doesn’t always mean that a disposition isn’t final. Gleason v. Jansen, 888 F.3d 847 (7th Cir. 2018). For instance, the Court explained that where it would be futile for the petitioner try to resolve the issue that prompted the District Court to dismiss the case, the seemingly nonfinal order is “functionally final” and appealable under 29 U.S.C. § 1291. Gacho v. Butler, 792 F.3d 732 (7th Cir. 2015).  

Applying the futility standard to the present case, the Court stated that it sees “finality in the futility” of Carter’s plight in the state courts. It recounted the endless delays and inaction experienced by Carter for four years and concluded that it would be futile for him “to try a final time to bring his appeal to life.” In practical terms, the Court stated that “Carter has no more remedies to exhaust” because asking him to try one final time is “a feat guaranteed to fail.” Thus, the Court ruled that the District Court’s order is “functionally final” and that it has “appellate jurisdiction” to review the dismissal order of the District Court.   

The Court then turned to the merits of the District Court’s decision and agreed with Carter’s contention that the “state court remedies in Wisconsin are ineffective to protect his rights.” The Court chided that the extreme delay in Carter’s state court case should have triggered alarm bells “within the Wisconsin courts, the public defender’s office, and even the Attorney General’s office,” yet no such concern ever materialized. See Dozie v. Cady, 430 F.2d 637 (7th Cir. 1970) (17-month delay inordinate); Lowe v. Duckworth, 663 F.2d 42 (7th Cir. 1981) (three-and-one-half-year delay is inordinate).

The Court explained that the situation Carter finds himself trapped in is the precise type of scenario Congress envisioned when it provided for an exception to the exhaustion requirement, viz., the state’s postconviction review process has proven itself effectively unavailable or, at the very least, ineffective in protecting his rights. § 2254(b)(1)(B)(i)-(ii). Consequently, “Carter is excused from exhausting and may bring the claims alleged in his state motion for postconviction relief directly to federal court,” the Court concluded. See Jackson v. Duckworth, 112 F.3d 878 (7th Cir. 1997).

The Court closed with the following damning assessment: “We were alarmed to see the state point its finger at Carter and, in its briefing, go so far as to say that he is at fault because he complained to no one about the delays until after he came into federal court. It is not clear to us what else Marvin Carter could have done or, for that matter, why the state is so intent on avoiding responsibility for its own failings. And we were shocked anew by the state’s presentation at oral argument. When asked whether the Attorney General had filed anything with the Wisconsin Supreme Court alerting it to the serious problems in the lower courts, counsel insisted, ‘We don’t have a problem.’ That view is indefensible: a miscarriage of justice occurs when a convicted person must wait four years for appellate review.”

Accordingly, the Court vacated the dismissal of Carter’s habeas petition and remanded with instruction to the District Court to review the merits of his claims without delay. See: Carter v. Buesgen, 10 F.4th 715 (7th Cir. 2021). 

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