In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐3489
ADAM YEOMAN,
Petitioner‐Appellant,
v.
WILLIAM POLLARD,
Respondent‐Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:14‐cv‐00225‐WED — William E. Duffin, Magistrate Judge.
ARGUED SEPTEMBER 6, 2017 — DECIDED NOVEMBER 16, 2017
Before WOOD, Chief Judge, and ROVNER and SYKES, Circuit
Judges.
ROVNER, Circuit Judge. Adam Yeoman is serving a lengthy
sentence in a Wisconsin prison after entering a plea of “no
contest” to a charge of attempted first degree intentional
homicide. Before filing his federal petition for habeas corpus
relief, he exhausted some but not all of his claims in the
2 No. 15‐3489
Wisconsin courts. In presenting his mixed petition to the
district court,1 Yeoman requested that the court enter a stay
and hold his petition in abeyance so that he could return to
state court and exhaust his remedies there. The court declined
to enter the stay after concluding that Yeoman lacked good
cause for the request. The court then dismissed the petition
with prejudice, and Yeoman appeals. We affirm.
I.
At approximately 2 a.m. on January 4, 2008, Yeoman
approached a bartender and the owner of the Log Cabin
Tavern as they walked through the parking lot of the Bangor,
Wisconsin bar. Yeoman pointed a handgun at the pair and
ordered them to the ground. Instead, they resisted. The bar
owner, armed with the evening’s receipts, hit Yeoman in the
face with the money bag he was carrying and wrestled him for
control of the gun. Yeoman repeatedly try to fire the malfunc‐
tioning gun. During the struggle, the bartender twice heard the
gun click but it did not fire.2 At one point, the bar owner
directed the bartender to get into her vehicle and run over
Yeoman, an action she was unable to take before Yeoman fled
the scene empty‐handed in a car driven by his sister. He was
apprehended minutes later. Yeoman eventually entered a plea
1
Yeoman consented to the jurisdiction of a magistrate judge pursuant to
28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Under section
636(c)(3) and Rule 73(c), he may take his appeal directly to this court in the
same manner as any appeal from a district court judgment. We will refer to
the court below as the district court.
2
Police officers recovered ejected shells which bore marks consistent with
the trigger being pulled.
No. 15‐3489 3
of “no contest” to one count of “attempt first degree intentional
homicide, repeater, use of a dangerous weapon” in the Circuit
Court of LaCrosse County, Wisconsin. R. 35‐7, at 20–29. Other
charges against him were dismissed, although his plea agree‐
ment specified that the remaining charges would be “read‐in”
for the purposes of sentencing. The other charges included a
second count of attempted first degree intentional homicide,
attempted armed robbery with threat of force, possession of a
firearm by a felon, obstructing an officer, and possession of
drug paraphernalia. Yeoman signed a plea questionnaire and
waiver of rights that listed his maximum penalty as sixty years’
imprisonment. The court sentenced Yeoman to twenty‐five
years in prison and twenty years of extended supervision.
Yeoman’s trial counsel filed a direct appeal for him, raising
three evidentiary issues. Counsel argued that law enforcement
lacked reasonable suspicion to stop Yeoman’s car, that the
officers failed to honor Yeoman’s invocation of his right to
remain silent, and that the searches of his car and his person
were unreasonable. The Wisconsin Court of Appeals denied
the appeal. Yeoman’s attorney told him that he did not intend
to file a petition in the Wisconsin Supreme Court, and no
petition was filed in that court.
Yeoman then filed a pro se petition for a writ of habeas corpus
in the Wisconsin Court of Appeals. He asserted that counsel on
direct appeal had been ineffective for failing to file a no‐merit
petition for review under Wis. Stat. § 809.32(4) in the Wiscon‐
sin Supreme Court. The Court of Appeals denied the habeas
petition because the no‐merit petition process applies only to
persons with counsel appointed by the State Public Defender,
and Yeoman had privately retained counsel. Yeoman then
4 No. 15‐3489
moved for reconsideration, arguing that: (1) he did not
knowingly waive his rights to a meaningful direct appeal; (2)
the court’s interpretation of the no‐merit petition as applying
only to indigent defendants with appointed counsel violated
equal protection; and (3) he was entitled to equitable relief
because his lawyer failed to follow through on an agreement
to file a petition for review in the Wisconsin Supreme Court.
After the Wisconsin Court of Appeals summarily rejected that
pro se motion, Yeoman filed a second motion for reconsidera‐
tion, this time arguing that his appellate counsel, who also
served as trial counsel, was ineffective because the issues that
counsel raised on direct appeal were either frivolous or
inadequately argued. Yeoman asserted that counsel should
have instead raised three other issues, namely that: (1) trial
counsel labored under an actual conflict of interest with his
client; (2) Yeoman did not knowingly and intelligently enter
his no‐contest plea; and (3) trial counsel was ineffective for
failing to inform Yeoman of any possible defenses3 prior to
3
Yeoman apparently wished to raise the defense of “imperfect self‐
defense,” which may be used to mitigate first‐degree intentional homicide
to second‐degree intentional homicide “if a person intentionally causes a
death because of an actual belief that the person is in imminent danger of
death or great bodily harm, and an actual belief that the use of deadly force
is necessary to defend herself, even if both of these beliefs are not reason‐
able.” State v. Head, 648 N.W.2d 413, 434 (Wis. 2002); WisStat. § 940.01(2)(B).
However, Wisconsin law also provides that a “person who engages in
unlawful conduct of a type likely to provoke others to attack him or her and
thereby does provoke an attack is not entitled to claim the privilege of
self‐defense against such attack, except when the attack which ensues is of
a type causing the person engaging in the unlawful conduct to reasonably
(continued...)
No. 15‐3489 5
entering the plea, and failing to inform him of various sentenc‐
ing issues. The Wisconsin Court of Appeals summarily denied
the second pro se motion for reconsideration as well. The
Wisconsin Supreme Court then denied his pro se petition for
review.
At that point, Yeoman filed a pro se petition for a writ of
habeas corpus in federal court claiming that (1) counsel was
ineffective on direct appeal when he failed to file a petition for
review with the Wisconsin Supreme Court without obtaining
a waiver from Yeoman of his right to do so; (2) Yeoman was
deprived of a meaningful direct appeal when counsel failed to
file a petition for review with the state supreme court because
that failure deprived Yeoman of an additional level of review
and prevented him from being able to seek federal habeas
review of the issues raised in the direct appeal; and (3) as
applied to him, section 809.32(4) violates Yeoman’s right to
equal protection. In the instant appeal, Yeoman refers to these
as his exhausted claims. In the petition’s request for relief,
3
(...continued)
believe that he or she is in imminent danger of death or great bodily harm.
In such a case, the person engaging in the unlawful conduct is privileged to
act in self‐defense, but the person is not privileged to resort to the use of
force intended or likely to cause death to the person’s assailant unless the
person reasonably believes he or she has exhausted every other reasonable
means to escape from or otherwise avoid death or great bodily harm at the
hands of his or her assailant.” Wis. Stat. § 939.48. Yeoman asserts that he
would have been entitled to raise this defense because the bar owner
admitted to striking him with the money bag and also admitted to scuffling
with Yeoman. It is dubious that Yeoman, the aggressor in an armed
robbery, would have been entitled to this defense under these facts.
6 No. 15‐3489
Yeoman asked that the district court reinstate his direct appeal
rights in state court.
A little more than two weeks after filing the first petition,
Yeoman filed a second federal habeas petition (docketed under
a second case number), which asserted three claims: (1) his
plea was unknowing because (a) he was not informed of
possible defenses to the attempted homicide counts, (b) he was
unaware that the dismissed charges could be used against him
at sentencing, and (c) he was unaware that sentencing
enhancers were dismissed only as to the count to which he
pled and not as to the counts that were read in; (2) trial counsel
was ineffective (a) for not informing him of possible defenses,
(b) for not objecting to the prosecutor’s purported breach of the
plea agreement, and (c) for not properly raising suppression
issues; and (3) post‐conviction counsel was ineffective for not
raising the first two grounds in the second habeas petition on
direct appeal. In the instant appeal, Yeoman refers to these as
his unexhausted claims. Yeoman explained in his second habeas
petition that he did not exhaust his state court remedies on
these three claims because, “The petitioner is waiting to see if
his direct appeal rights will be reinstated before filing a
collateral appeal in state court.” R. 1, at 8–9. For relief in the
second petition, Yeoman requested that the district court enter
an order allowing him to withdraw his plea. R. 1, at 12.
On the same day that he filed his second federal petition,
Yeoman also filed a “Motion to Stay Petition and Hold in
Abeyance.” R. 2. In the motion, Yeoman explained that he was
aware that he could file a motion for post‐conviction relief in
state court asserting that his post‐conviction lawyer was
ineffective for not raising certain meritorious issues on direct
No. 15‐3489 7
appeal and for failing to adequately argue the issues that he
did raise. But Yeoman asserted that this avenue for appeal
presented procedural hurdles that would not be present if he
could simply pursue the issues anew on direct appeal. He
therefore decided that he would pursue a motion for post‐
conviction relief in state court only “as a last resort if his direct
appeal rights are not reinstated.” R. 2, at 2. Yeoman filed the
second petition and concurrent motion for a stay because he
was concerned that the court might deny relief in his first
petition and not reinstate his direct appeal rights in state court.
If that happened, he explained, he would be forced to file a
collateral appeal in state court and wished to assure that he
preserved his right to seek federal habeas review of any adverse
ruling from the state courts on the so‐called unexhausted
claims. In sum, Yeoman filed the second “protective” petition:
in case he is not allowed to file a petition
concerning the violation of his constitutional
appellate rights and a subsequent and dis‐
tinct petition challenging the constitutional
basis of his plea and sentencing, so that he
can amend his current petition to include the
issues directly attacking his conviction.
R. 2, at 2–3. He therefore asked the court to “stay and abey” his
second petition until it ruled on his first petition (and appealed
that ruling, if necessary), so that he could commence state
court post‐conviction proceedings to exhaust his remaining
claims if his first petition failed.
The district court ultimately ordered Yeoman to consolidate
his two cases and file one petition containing all six of his
8 No. 15‐3489
claims. The State then moved to dismiss the petition for failure
to state a claim, failure to exhaust state court remedies and
procedural default. The district court noted that the petition
now contained three exhausted and three unexhausted claims,
and that a mixed petition may not be granted. See Rose v.
Lundy, 455 U.S. 509, 510 (1982) (district courts must dismiss
habeas petitions that contain both exhausted and unexhausted
claims, leaving the prisoner with the choice of returning to
state court to exhaust his claims or of amending or resubmit‐
ting the habeas petition to present only exhausted claims to the
district court). The court offered Yeoman two choices: he could
amend his petition to remove the unexhausted claims, allow‐
ing the court to rule only on the exhausted claims; or he could
return to state court to exhaust the remaining claims. The court
warned that if he chose the latter option, his petition would be
dismissed unless he demonstrated good cause for staying the
matter and holding the petition in abeyance. R. 42.
Yeoman responded with a motion to stay and abey the
unexhausted claims while he attempted to pursue reinstate‐
ment of his direct appeal rights through his first group of
exhausted claims. In the alternative, he sought to stay the
entire petition while he exhausted the unexhausted claims. The
district court declined to enter a stay, concluding that Yeoman
had not demonstrated good cause for his failure to exhaust.
The court noted that Yeoman’s failure to exhaust his last three
claims was intentional. Yeoman decided that he wanted a
federal court to determine whether he was entitled to counsel
on his direct appeal to the Wisconsin Supreme Court before he
returned to state court to exhaust his remaining remedies. That
was an unsound strategy, the court found, and Yeoman’s lack
No. 15‐3489 9
of legal knowledge and status as a pro se petitioner did not
establish good cause. Nor did Yeoman demonstrate good cause
due to ineffective assistance of counsel; Yeoman did not assert
that counsel’s ineffective assistance in any way delayed or
undermined his ability to exhaust his claims on collateral
review. He could have exhausted all of his claims but chose to
limit collateral review to his three exhausted claims in the
hopes that the court would grant part of his petition. In
addition to denying the motion for a stay, the court also
declined to allow Yeoman to amend his petition to proceed
with only the exhausted claims because those claims lacked
any merit. The court also declined to issue a certificate of
appealability and subsequently denied Yeoman’s Rule 59(e)
motion to alter the judgment.
II.
This court granted Yeoman’s application for a certificate of
appealability, finding that Yeoman “made a substantial
showing of the denial of his right as to whether his plea was
knowing and intelligent and whether trial counsel was
ineffective.” We ordered the parties to address “whether the
district court abused its discretion in refusing to stay Yeoman’s
petition while he exhausted state remedies for his unexhausted
claims.” As a threshold matter, this court must answer the
latter question first, determining whether the district court
abused its discretion in denying Yeoman a stay and abeyance.
Both sides agree that if this court concludes that the district
court abused its discretion, the matter should be remanded so
that the district court may enter the stay, allowing Yeoman to
return to state court to exhaust his remaining claims. But if we
10 No. 15‐3489
find that the court did not abuse its discretion, the judgment
must be affirmed.
District courts generally have the discretion to issues stays,
but in the context of cases involving the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), the court’s
exercise of discretion must be compatible with AEDPA’s
purposes. Rhines v. Weber, 544 U.S. 269, 276 (2005). One of the
purposes of AEDPA is to “reduce delays in the execution of
state and federal criminal sentences, particularly in capital
cases.” Rhines, 544 U.S. at 276 (quoting Woodford v. Garceau,
538 U.S. 202, 206 (2003)). The finality of state court judgments
is a well‐recognized interest that is promoted by AEDPA.
Rhines, 544 U.S. at 276. Moreover, “the interests of comity and
federalism dictate that state courts must have the first opportu‐
nity to decide a petitioner’s claims. Rhines, 544 U.S. at 273.
Stay and abeyance, if employed too
frequently, has the potential to undermine
these twin purposes. Staying a federal habeas
petition frustrates AEDPA’s objective of
encouraging finality by allowing a petitioner
to delay the resolution of the federal proceed‐
ings. It also undermines AEDPA’s goal of
streamlining federal habeas proceedings by
decreasing a petitioner’s incentive to exhaust
all his claims in state court prior to filing his
federal petition.
Rhines, 544 U.S. at 277.
For these reasons, the Court held that “stay and abeyance
should be available only in limited circumstances.” Rhines, 544
No. 15‐3489 11
U.S. at 277. In particular, the court may grant a stay and
abeyance only when the petitioner demonstrates good cause
for failing to exhaust his or her claims first in state court. In
instances where there is good cause, a court may not grant a
stay and abeyance when the unexhausted claims are plainly
meritless, or when a petitioner has engaged in abusive litiga‐
tion tactics or intentional delay. Rhines, 544 U.S. at 277–78. The
district court concluded that Yeoman met two of the three
requirements for a stay and abeyance: his claims were not
plainly meritless, and he had not engaged in abusive litigation
tactics or intentional delay. But the court concluded that
Yeoman’s strategic decision, based on a misapprehension of
the law, did not constitute good cause for failure to exhaust.
We cannot say that this decision amounted to an abuse of
the district court’s discretion.4 Under the abuse‐of‐discretion
standard, “we uphold any exercise of the district court’s
discretion that could be considered reasonable, even if we
might have resolved the question differently.” Scott v. Chuhak
& Tecson, P.C., 725 F.3d 772, 778 (7th Cir. 2013). The district
court noted that Yeoman’s unsound strategy of splitting his
claims, based perhaps on a lack of legal knowledge, could not
establish good cause because virtually any pro se prisoner
could meet that standard. Allowing for a stay in this situation
would be contrary to the Supreme Court’s directive that “stay
and abeyance should be available only in limited circum‐
stances.” Rhines, 544 U.S. at 277.
4
We therefore need not address the court’s conclusion that the claims were
not plainly meritless and that Yeoman had not engaged in intentional delay.
12 No. 15‐3489
Yeoman contends that a stay in his case does no harm to the
goals of the AEDPA. Because he is not under a sentence of
death, he has no incentive to delay execution of his sentence.
On the contrary, he has every incentive to resolve his case as
quickly as possible in order to overturn his conviction or
shorten his term of imprisonment. Moreover, he asserts, the
Supreme Court held in Pace v. DiGuglielmo, 544 U.S. 408, 416
(2005), that a “petitioner’s reasonable confusion about whether
a state filing would be timely will ordinarily constitute ‘good
cause’ for him to file in federal court.”
But Yeoman’s first argument does not account for the
AEDPA’s “interests of comity and federalism [which] dictate
that state courts must have the first opportunity to decide a
petitioner’s claims,” or the interest in finality, which does not
apply exclusively to capital cases. Yeoman’s strategy would
have the effect of giving the federal courts an opportunity to
remand his case to the state courts before the state courts have
a chance to consider and resolve all of his claims. “[I]t would
be unseemly in our dual system of government for a federal
district court to upset a state court conviction without an
opportunity to the state courts to correct a constitutional
violation.” Rhines, 544 U.S. at 274 (quoting Rose, 455 U.S. at 518,
and Darr v. Burford, 339 U.S. 200, 204 (1950)). The doctrine of
comity “teaches that one court should defer action on causes
properly within its jurisdiction until the courts of another
sovereignty with concurrent powers, and already cognizant of
the litigation, have had an opportunity to pass upon the
matter.” Rhines, 544 U.S. at 274 (quoting Rose, 455 U.S. at 518).
Yeoman’s strategy of splitting his claims, in short, is inconsis‐
No. 15‐3489 13
tent with AEDPA’s goals of streamlining habeas proceedings.
Rhines, 544 U.S. at 277.
Moreover, Yeoman misreads the Supreme Court’s reason‐
ing in Pace. Yeoman characterizes Pace as holding that a
petitioner’s reasonable confusion about state filing deadlines
will ordinarily constitute “good cause” for a stay. He asserts
that his confusion about exhaustion requirements similarly
provided good cause for seeking a stay, and that the court
abused its discretion here in denying him a stay. The Pace
Court addressed the possible plight of a petitioner, trying in
good faith to exhaust state remedies, who might litigate in state
court for years only to find out that his claim was never
“properly filed,” and thus his federal habeas petition is time‐
barred. In order to avoid that predicament, the Supreme Court
suggested that a petitioner seeking state court post‐conviction
relief could also file a “protective” petition in federal court and
ask the federal court to stay and abey federal habeas proceed‐
ings until state remedies were exhausted. Pace, 544 U.S. at 416.
Citing Rhines, the Court said that a “petitioner’s reasonable
confusion about whether a state filing would be timely will
ordinarily constitute ‘good cause’ for him to file in federal
court.” Pace, 544 U.S. at 416–17 (citing Rhines, 544 U.S. at 278 for
the proposition that if the petitioner had good cause for his
failure to exhaust, if his unexhausted claims are potentially
meritorious, and if there is no indication that the petitioner
engaged in intentionally dilatory tactics, then the district court
likely “should stay, rather than dismiss, the mixed petition”).
Pace by its own terms applies to petitioners, “trying in good
faith to exhaust state remedies.” 544 U.S. at 416. Yeoman, at the
time he sought a stay, was trying to delay exhaustion of state
14 No. 15‐3489
remedies on his last three claims in the hopes of instead
reinstating his direct appeal rights through his first three
claims. Nothing in Pace would support that strategy, and the
district court did not abuse its discretion in finding that
Yeoman’s confusion was not “reasonable.”
Finally, Yeoman asserts that the denial of the stay and
dismissal of his claims forever precludes habeas review of his
unexhausted claims. But any unavailability of federal review
would be due entirely to Yeoman’s failure to exhaust his
claims in state court first. In short, there was no abuse of
discretion in the district court’s decision to deny the stay on the
ground that Yeoman lacked good cause for failing to exhaust
his claims.
AFFIRMED.