Kay Xiong Yang v. Michael Gierach, Christopher Schmaling, Jared Hoy, Samuel Christensen, James K. Muehlbauer and John Does 1-9

Summary

The United States District Court for the Eastern District of Wisconsin overruled Kay Xiong Yang’s objection, adopted the magistrate judge’s recommendation, and dismissed without prejudice her second habeas corpus petition under 28 U.S.C. § 2254. The court held that Yang had not exhausted available Wisconsin state-court remedies and that no circumstances justified excusing exhaustion or staying the state proceedings. The court also declined to issue a certificate of appealability.

Holdings

1. A state prisoner who has not fairly presented her federal constitutional claims through the available state-court process may not obtain federal habeas review under 28 U.S.C. § 2254, absent an applicable statutory exception. Yang had not completed that process, so dismissal without prejudice was required.
2. A stay under § 2251(a)(1) is discretionary and was unwarranted because Yang did not demonstrate a substantial claim, a likelihood of prevailing, or extraordinary circumstances requiring federal interference with the state proceedings.
3. A certificate of appealability should not issue because reasonable jurists would not debate the conclusion that Yang had failed to exhaust her state-court remedies.

Questions Presented

1. Whether Yang's second federal habeas petition should be dismissed because she had not exhausted available state-court remedies under 28 U.S.C. § 2254(b)(1)(A).
2. Whether the alleged delay by the Wisconsin courts and alleged alteration of a filing stamp established an absence of available state corrective process or circumstances rendering that process ineffective under 28 U.S.C. § 2254(b)(1)(B).
3. Whether the court should stay state proceedings under 28 U.S.C. § 2251(a)(1).
4. Whether to issue a certificate of appealability.

Disposition

dismissed