United States District Court, W.D. Wisconsin
FREDERICK R. SCHMITT, Petitioner,
RICHLAND COUNTY CLERK OF CIRCUIT COURT, and JUDGE LEINEWEBER Respondents.
OPINION & ORDER
D. PETERSON District Judge.
Frederick R. Schmitt is currently a prisoner at the
Redgranite Correctional Institution. He seeks a writ of
habeas corpus under 28 U.S.C. § 2254 to challenge his
2007 conviction from the circuit court for Richland County,
Wisconsin. Petitioner has paid his five-dollar filing fee,
and I may now preliminarily review the case under Rule 4 of
the Rules Governing Section 2254 Cases in the United States
District Courts. Because petitioner is proceeding pro se, I
must read his petition generously. Haines v. Kerner,
404 U.S. 519, 520 (1972) (per curiam). After reviewing the
petition, I conclude that the petition appears untimely. But
before I dismiss it, I will give petitioner an opportunity to
respond to this order and explain why the case should
also requests the assistance of counsel. Dkt. 2. Because
petitioner has not shown that he financially eligible, or
that appointment would serve the interests of justice, that
request will be denied.
the following facts from petitioner's filings. Petitioner
entered a plea of no contest on November 16, 2007, to charges
that he violated Wis.Stat. § 948.025(1)(a), by
repeatedly sexually assaulting the same child. On February 7,
2008, petitioner was sentenced to 10 years of prison and 15
years of extended supervision. He did not appeal.
to the petition, on May 24, 2015, petitioner filed for relief
of some kind with the circuit court, but he has not yet
received an answer from the court. Wisconsin court records
show that petitioner filed for a writ of mandamus on November
2, 2015, but the writ was denied on February 3, 2016.
Petitioner filed his habeas petition on February 11, 2016.
28 U.S.C. § 2244(d)(1)(A), a prisoner must file a
federal collateral attack on a state criminal judgment within
one year of when the state court judgment became final. The
one-year period begins to run from the latest of: (1) the
date on which judgment in the state case became final by the
conclusion of direct review or the expiration of the time for
seeking such review; (2) the date on which any state
impediment to filing the petition was removed; (3) the date
on which the constitutional right asserted was first
recognized by the Supreme Court, if that right was also made
retroactively applicable to cases on collateral review; or
(4) the date on which the factual predicate of the claims
could have been discovered through the exercise of due
diligence. § 2244(d)(1)(A)-(D). The statute also
provides that the time during which a properly filed
application for state postconviction or other collateral
review is pending is not counted toward any period of
limitation. § 2244(d)(2).
had 90 days to appeal his November 16, 2007, conviction
before it became final. He did not appeal, so his conviction
became final on February 14, 2008. His one-year clock to file
a federal habeas petitioner began running the next day, on
February 15, 2008, giving him until February 15, 2009 to
file. It does not appear from the record that petitioner
filed anything during that time to toll the statute of
limitations. Thus, the statute of limitations has long
since expired, and the February 11, 2016, petition for
federal habeas relief is untimely.
petitioner may be able to overcome the untimeliness.
Petitioner may be entitled to relief through equitable
tolling if he can show that: (1) he has been pursuing his
rights diligently; and (2) some extraordinary circumstance
stood in his way and prevented timely filing. Holland v.
Florida, 560 U.S. 631, 649 (2010). Petitioner has not
yet demonstrated that he has been pursuing his rights
diligently or that an extraordinary circumstance has been
standing in his way. Unless petitioner can establish that his
claims should be tolled, I must dismiss his petition as
other option is available to petitioner: he may be able to
overcome the one-year time limit by arguing for an equitable
exception based on a claim of actual innocence. See
McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013). To
qualify for this narrow exception, petitioner must
"present evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the
court is also satisfied that the trial was free of
nonharmless constitutional error." Schlup v.
Delo, 513 U.S. 298, 316 (1995). Petitioner must show
"that, in light of new evidence, ‘it is more
likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.'"
House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting
Schlup, 513 U.S. at 327). To be "new, "
the evidence does not need to be "newly discovered,
" but it must not have been presented at trial.
Gladney v. Pollard, 799 F.3d 889, 898 (7th Cir.
2015). Based on the materials that petitioner has submitted
so far, I am skeptical that he will qualify for this
equitable exception. However, I will give petitioner a short
time to respond to this order and show that: (1) he qualifies
for equitable tolling; or (2) I should excuse him from the
one-year limitations period because he is actually innocent.
If he fails to adequately respond, I will dismiss his
also requests the assistance of counsel. Dkt. 2. He contends
that because he is not a lawyer, he will not be able to
adequately present his arguments. The Criminal Justice Act,
18 U.S.C. § 3006A(a)(2)(B), authorizes district courts
to appoint counsel for a petitioner seeking habeas relief
under 28 U.S.C. § 2254. But first, the district court
must determine that the petitioner is "financially
eligible" and that the appointment of counsel would
serve "the interests of justice." 18 U.S.C. §
3006A(a)(2). To be financially eligible for appointment of
counsel, petitioner does not have to be indigent; he must
demonstrate only that he is financially unable to obtain
counsel. United States v. Sarsoun, 834 F.2d 1358,
1362 (7th Cir. 1987) ("The Criminal Justice Act . . .
merely requires that a defendant be financially unable to
obtain counsel-a lower standard than indigency."). The
court also considers whether: (1) the merits of
petitioner's claims are colorable; (2) petitioner is able
to investigate crucial facts; (3) the assistance of counsel
will more likely expose the truth based on the nature of the
evidence; (4) petitioner is capable of presenting the case;
and (5) the legal issues raised are complex. Wilson v.
Duckworth, 716 F.2d 415, 418 (7th Cir. 1983). Petitioner
has not yet made any of these showings. His request will
therefore be denied without prejudice to him raising it again
later in the case if he is able to overcome his untimeliness.