United States District Court, W.D. Wisconsin
BRANDON A. GASTON, Petitioner,
LIZZIE TEGELS, Respondent.
Barbara B. Crabb District Judge
Lizzie Tegels has moved for dismissal of petitioner Brandon
A. Gaston’s petition for a writ of habeas corpus under
28 U.S.C. § 2254. Petitioner opposes the motion,
conceding that he missed the date for filing but arguing that
equitable tolling is justified in his case. He alleges that
his counsel, Christopher Gramstrup, refused to return the
case file to petitioner despite petitioner’s repeated
requests that he do so, and that this gave petitioner reason
to believe that Gramstrup was continuing to pursue post
conviction relief on his behalf in the state court.
review of the record shows that, even if Gramstrup refused to
return the case file, petitioner could have developed his
post conviction claims without the file and he had ample time
in which to file his federal habeas claim. Accordingly,
respondent’s motion to dismiss the petition will be
was convicted in 2013 of second degree sexual assault by use
of force, victim intimidation by threat of force and two
counts of felony bail jumping, all as a repeat offender. He
was sentenced in the Circuit Court for Eau Claire County in
case no. 2011CF737 to a term of nine years of initial
confinement to be followed by seven years of extended
supervision. Judgment was entered on May 7, 2013. Dkt. #19-3,
at 2. He did not file a direct appeal from his conviction.
counsel, Chris Gramstrup, filed a notice of intent to pursue
post conviction relief on May 7, 2013. The record was mailed
to Gramstrup on June 17, 2013 and on August 8, 2013, 12
transcripts of case proceedings were filed in the circuit
court. Id. at 3-4.
November 15, 2013, Gramstrup filed a motion to withdraw as
counsel for petitioner. Id. at 2. The motion was
granted on November 18, 2013. Id. at 2. On May 22,
2014, petitioner petitioned for a writ of habeas corpus in
the Wisconsin Court of Appeals. Id. at 1. That court
denied the petition on August 8, 2014, ruling that
petitioner’s counsel had not been ineffective.
Id. Petitioner filed a timely petition for review,
which the Wisconsin Supreme Court denied in an order entered
on November 17, 2014. Id. A year later, on November
17, 2015, petitioner filed a petition for a writ of
habeas corpus in this court, alleging ineffective assistance
of appellate counsel and saying that although counsel had
told him he planned to close petitioner’s file unless
petitioner wrote him to disagree, counsel had been granted
leave to withdraw as counsel on the day after he wrote.
Petitioner alleged that he had not been informed that he
would waive his right to the assistance of counsel or that he
would not be appointed successor counsel to assist him with
the appeal of his conviction.
the Antiterrorism and Effective Death Penalty Act of 1996,
state prisoners have one-year in which to seek habeas corpus
relief in federal court. 28 U.S.C. § 2244(d)(1). The
statute sets out several different dates on which the period
starts to run, depending on the circumstances of the case. In
this case, the applicable period began to run from the latest
of “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” This period is tolled when a
“properly filed application for State post-conviction
or other collateral review with respect to the pertinent
judgment or claim is pending.” § 2244(d)(2).
did not seek direct review of his 2013 conviction in state
court, which means that his conviction became final on
October 7, 2013, the last day on which he could have taken a
timely appeal. He then had one year in which to seek post
conviction relief. However, this limitations period was
tolled for seven and one-half months when petitioner filed a
habeas petition in state court, challenging his custody.
After the petition was denied by the Wisconsin Court of
Appeals, he sought review of the decision by the Wisconsin
Supreme Court, which denied his request, starting the
one-year limitations period running again. At this point,
petitioner had four and one-half months in which to file a
petition in federal court, or until March 31, 2015. By
waiting to file until November 17, 2015, he lost his
opportunity for federal review of his conviction.
contends that he should not be bound by the one-year limit in
light of his appellate counsel’s failure to hand over
the case file, to investigate a potential claim and to
respond to requests for information about the status of an
investigation into a potential claim, but he has not
explained why he needed the file in order to argue that his
counsel had refused to turn the file over to him and had
withdrawn without investigating or responding to
petitioner’s requests for information. Once
petitioner’s state habeas proceeding had come to a
close, he still had more than four months in which he could
have filed a petition for federal habeas relief, based on his
contention that his court-appointed counsel had abandoned
him. He did not need the case files to do this; he knew that
counsel had been allowed to withdraw from representing him.
unexplained delay in seeking federal relief does not excuse
him from compliance with the rules set out in 28 U.S.C.
§ 2244(d)(1). His case does not present extraordinary
circumstances far beyond his control that prevented timely
filing. Socha v. Boughton, 763 F.3d 674 (7th Cir.
2014). He has not shown “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Holland v.
Florida, 560 U.S. 631, 649 (2010). Accordingly, I
conclude that petitioner’s motion for a writ of habeas
corpus must be denied.
Rule 11 of the Rules Governing Section 2255 Proceedings, the
court must issue or deny a certificate of appealability when
entering a final order adverse to a defendant. To obtain a
certificate of appealability, the applicant must make a
"substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2); Tennard v.
Dretke, 542 U.S. 274, 282 (2004). This means that
"reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate
to deserve encouragement to proceed further."
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotations and citations omitted). Petitioner has
not made a substantial showing of a denial of a
constitutional right so no certificate will issue.
the rule allows a court to ask the parties to submit
arguments on whether a certificate should issue, it is not
necessary to do so in this case because the question is not a
close one. Petitioner is free to seek a certificate of
appealability from the court of appeals under Fed. R. App. P.
22, but that court will not consider his request unless he
first files a notice of ...