7th Circuit Upholds Dismissal of Federal Habeas Corpus Petition Because It Was a “Mixed” Petition.

The Defendant here was convicted for Wisconsin’s version of Attempt First Degree Murder. After losing on direct appeal, he filed a pro se habeas corpus petition with the Wisconsin Court of Appeals. After losing there, he tried with the Wisconsin Supreme Court and failed there.

The defendant then filed a pro se federal writ of habeas corpus raising several “exhausted” claims. He then filed a second one with three more claims that had not been heard in Wisconsin State Court. He asked the federal court to stay the proceedings while he went back and exhausted his State court claims.

Noting that mixed petitions may not be granted, the District judge gave the defendant the choice between dismissing his unexhausted claims so he could rule on the exhausted ones, or return to State court to exhaust the remaining claims. When the defendant sought to stay proceedings, along with some other “in the alternative” motions, that led the Federal District Court to dismiss the Petition.

The Seventh Circuit held that the District Court did not abuse its discretion because the Defendant lacked good cause for failing to exhaust all of his claims.

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