Underwood v. Cahak

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

ROBERT RICHARD UNDERWOOD,

Petitioner,

v. Case No. 24-CV-1145

WARDEN BRIAN CAHAK,

Respondent.

ORDER ON THE PETITION FOR A WRIT OF HABEAS CORPUS

Robert Richard Underwood, who is incarcerated pursuant to the judgment of a Wisconsin Circuit Court, filed a petition for a writ of habeas corpus. (ECF No. 1.) Rule 4 of the Rules Governing Section 2254 Cases states: If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

Underwood has pursued relief in the Wisconsin Court of Appeals and Wisconsin Supreme Court (ECF No. 1 at 3), and therefore has plausibly exhausted his state court remedies. See 28 U.S.C. § 2254(b)(1)(A). There is no indication that he has previously sought federal habeas relief. See 28 U.S.C. § 2244(b); (ECF No. 1 at 9.). His petition contains at least one plausibly cognizable claim. And he represents that he filed his petition within one year of the Wisconsin Supreme Court denying his request for

review. (ECF No. 1 at 3); see also 28 U.S.C. § 2244(d); Sup. Ct. R. 13; Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002). Consequently, the court is unable to say that it is plainly apparent that the petitioner is not entitled to relief. The respondent shall answer

the petition. The Clerk of Court shall promptly serve the respondent by service of a copy of the petition and this order upon the State of Wisconsin Attorney General.

No later than 60 days after this order the respondent shall answer the petition in accordance with Rule 5 of the Rules Governing Section 2254 Cases. Underwood shall then submit a brief in support of his petition no later than 28 days thereafter. The respondent shall submit a brief in opposition no later than 28 days thereafter.

Underwood may reply no later than 21 days thereafter. Alternatively, the respondent may move to dismiss Underwood’s petition no later than 60 days after this order. In the event the respondent moves to dismiss the

petition, Underwood shall respond to that motion no later than 28 days thereafter. The respondent may then reply no later than 28 days thereafter. Unless the court determines that additional proceedings are necessary, this shall conclude the briefing. The court will then resolve the petition on the written record. All of the petitioner’s filings with the court shall be mailed to the following address: Office of the Clerk United States District Court Eastern District of Wisconsin 362 United States Courthouse 517 E. Wisconsin Avenue Milwaukee, WI 53202 DO NOT MAIL ANYTHING DIRECTLY TO CHAMBERS. The petitioner should also retain a personal copy of each document. The petitioner is further advised that the failure to comply with all deadlines in this matter may have serious consequences, which may include the loss of certain rights or the dismissal of this action.

In addition, the petitioner must immediately notify the Clerk of Court of any change of address. Failure to do so could result in orders or other information not being timely delivered, thus affecting the legal rights of the parties. SO ORDERED. Dated at Milwaukee, Wisconsin this 20th day of September, 2024.

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WILLIAM E. DUFFI US. Magistrate Judge