United States District Court, E.D. Wisconsin
WILLIE C. SIMPSON, Petitioner,
SCOTT ECKSTEIN, Respondent.
Stadtmueller U.S. District Judge
January 3, 2017, Willie C. Simpson (“Simpson”)
filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. (Docket #1). In his petition, which
was submitted on a non-standard Section 2254 form, Simpson
states that he is challenging the effect of a sentence
imposed by Grant County, Wisconsin for battery by a prisoner.
See State of Wisconsin v. Willie C. Simpson, Grant
County, Case No. 2011-CF-123. In addition to his petition,
Simpson has filed: (1) a motion for leave to proceed in
forma pauperis (Docket #4); (2) a motion for a temporary
restraining order (Docket #8); and (3) a motion to stay this
matter pending exhaustion of his state court remedies (Docket
of the Rules Governing Section 2254 Cases in the United
States District Courts authorizes a district court to conduct
an initial screening of habeas corpus petitions and to
dismiss a petition summarily where “it plainly appears
from the face of the petition…that the petitioner is
not entitled to relief.” This rule provides the
district court the power to dismiss both those petitions that
do not state a claim upon which relief may be granted and
those petitions that are factually frivolous. See Small
v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993). Upon an
initial Rule 4 review of habeas petitions, the court will
analyze whether the petitioner has avoided statute of
limitations bars, exhausted available state remedies, avoided
procedural default, and set forth cognizable constitutional
or federal law claims.
did with Simpson some five months prior, the Court is
compelled to address the fact that he is the personification
of a serial litigant. See Simpson v. Eckstein, Case
No. 16-CV-854 (E.D. Wis. August 30, 2016) (Docket #20) (the
“2016 Screening Order”) (petition denied, Simpson
appealed); Simpson v. Walker et al., Case No.
15-CV-1017 (E.D. Wis. filed Aug. 20, 2015) (dismissed after
voluntary withdrawal of petition) (J. Randa); Simpson v.
Walker et al., Case No. 15-CV-1016 (E.D. Wis. filed Aug.
20, 2016) (dismissed for failure to exhaust state remedies)
(J. Randa); Simpson v. Pollard, Case No. 15-CV-986
(E.D. Wis. filed Aug. 18, 2015) (dismissed as unauthorized
successive petition) (J. Randa); Simpson v. Walker et
al., Case No. 15-CV-171 (E.D. Wis. filed Feb. 12, 2015)
(dismissed as unauthorized successive petition); Simpson
v. Wis. Dept. Corr., Case No. No. 14-CV-197 (E.D. Wis.
filed Feb. 21, 2014) (J. Griesbach), aff'd, No.
14-2056 (7th Cir. Oct. 23, 2014) (dismissed for failure to
exhaust state remedies); Simpson v. Haines, Case No.
12-CV-410 (E.D. Wis. filed May 12, 2012) (denying petition)
(J. Adelman); Simpson v. Kingston, Case No.
02-CV-1099 (E.D. Wis. filed Nov. 13, 2002) (denying petition)
(J. Adelman); see also Simpson v. Walker, Case No.
11-CV-838-BBC (W.D. Wis. Apr. 1, 2013) aff'd,
527 F.App'x 561 (7th Cir. 2013); Simpson v.
Thorpe, 09-CV-532-BBC, 2010 WL 3667003 (W.D. Wis. Sept.
15, 2010); Simpson v. Joseph, 06-CV-200, 2007 WL
433097 (E.D. Wis. Feb. 5, 2007), aff'd, 248
F.App'x 746 (7th Cir. 2007); Simpson v.
Greenwood, 06-CV-612-C, 2007 WL 5445538 (W.D. Wis. Apr.
explained by previous courts in this District, Simpson is
currently incarcerated at the Green Bay Correctional
Institution, where he is serving a 65-year sentence for
sexually assaulting children. See Simpson v. Haines,
Case No. 12-CV-410, Docket #33 at 1 (E.D. Wis. filed May 12,
2012) (denying petition) (J. Adelman). He was first convicted
in the Milwaukee County Circuit Court in 1997 of
second-degree sexual assault of a child under Wis.Stat.
§ 948.02(2). The court stayed the resulting 15-year
prison sentence and placed Simpson on probation, which was
revoked in 1999 after he molested a 6-year-old. He was
subsequently convicted of two counts of first-degree sexual
assault of a child under Wis.Stat. § 948.02(1) and
sentenced to two consecutive prison terms of 25 years. Next,
in 2012, Simpson was convicted in Dodge County Circuit Court
of battery by prisoners, bail jumping and disorderly conduct
in violation of Wis.Stat. §§ 940.20(1),
946.49(1)(b), and 947.01, respectively. See Simpson v.
Walker et al., Case No. 15-CV-171, Docket #9 at 2-3
(E.D. Wis. filed Feb. 12, 2015) (J. Randa). Finally, in 2013,
Simpson was convicted in Grant County Circuit Court of one
count of battery by prisoners and six counts of prisoner
throwing/expelling bodily substances in violation of
Wis.Stat. § 946.43(2m)(a). Id.
case must be dismissed, like that from July 2016, for myriad
reasons. First, on the face of Simpson's petition, it is
not apparent that he states a cognizable habeas claim. In the
Court's August 30, 2016 order in the July 2016 case, it
found as a ground for dismissal Simpson's repeated
statements that he was not attacking the validity of a
conviction, but rather the way in which Wisconsin Department
of Corrections (“DOC”) policies affected his good
time credit. 2016 Screening Order at 3-4. As the Court
explained, a state prisoner may obtain habeas corpus relief
“only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). “An alternate
formulation of this basic principle is that a habeas corpus
petition must attack the fact or duration of one's
sentence; if it does not, it does not state a proper basis
for relief under § 2254[.]” Washington v.
Smith, 564 F.3d 1350, 1351 (7th Cir. 2009). Simpson
claims to attack the validity of the Grant County conviction,
11-CR-123, but what he actually complains of is the DOC's
application of that conviction, pursuant to its policies, to
deny him early release. See (Docket #1 at 2, 10).
Simpson's petition is silent as to any infirmity in the
conviction itself. See generally Id. at 7-11. Thus,
as it did in the 2016 Screening Order, the Court must
conclude that he has failed to present a cognizable habeas
claim because his challenge attacks DOC policies, not an
the claim was cognizable, it would still fail for numerous
reasons. First, assuming the petition has anything to do with
the conviction in 11-CR-123, it is untimely. A state prisoner
in custody pursuant to a state court judgment has one year
from the date “the judgment became final” to seek
federal habeas relief. 28 U.S.C. § 2244(d)(1)(A). A
judgment becomes final within the meaning of Section
2244(d)(1)(A) when all direct appeals in the state courts are
concluded followed by either the completion or denial of
certiorari proceedings in the U.S. Supreme Court, or, if
certiorari is not sought, at the expiration of the 90 days
allowed for filing for certiorari. See Ray v.
Clements, 700 F.3d 993, 1003 (7th Cir. 2012). A review
of the publicly-available docket report for 11-CR-123 shows
that Simpson's conviction became final on January 11,
2013, and his appeal was dismissed on July 24, 2014. See
State of Wisconsin v. Willie C. Simpson, Grant County,
Case No. 2011-CF-123; State v. Willie C. Simpson,
Court of Appeals District 4, Case No. 2014- AP-1477.
Simpson's time to file, then, passed in July 2015, long
before the January 3, 2017 filing date of this petition.
motion to stay, Simpson makes two arguments to avoid
untimeliness. First, he asserts that the one year statute of
limitations does not apply because his habeas challenge
arises out of prison discipline. (Docket #13 at 1). He is
incorrect. Although his battery charge was of a special kind
reserved for prisoners, it was still a felony for which he
was convicted by the Wisconsin courts. See Wis.
Stat. § 940.20(1). It was not a punishment imposed by a
prison disciplinary board. Cf. Cox v. McBride, 279
F.3d 492, 493 (7th Cir. 2002).
Simpson contends that “after resolution of the state
post-conviction [motion], petitioner has one year to file
habeas claims to the federal court[.]” (Docket #13 at
2). He is again incorrect. While the relevant Wisconsin
statute, Section 974.06, provides for collateral review
without a time limitation, it does not restart the statute of
limitations for habeas purposes. See Wis. Stat.
§ 974.06(1). Graham discussed this very issue:
For the sake of thoroughness, we will cut one final argument
off at the pass. Although we have concluded that §
974.06 review constitutes collateral review, Graham's
§ 974.06 petition did nothing to toll the federal habeas
statute of limitations under 28 U.S.C. § 2244(2)
(“the time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under this
subsection.”). As we noted above, Graham had one year
from the date of the enactment of the AEDPA, or until April
24, 1997, to file his federal habeas corpus petition. Graham
did not have a properly filed application for collateral
review pending at any time between the time when his judgment
became final and April 24, 1997. Consequently his §
974.06 motion had no tolling effect whatsoever on the AEDPA
statute of limitations. Graham's habeas petition is
untimely and cannot be considered by this court.
Graham v. Borgen, 483 F.3d 475, 482-83 (7th Cir.
2007). The court also noted the reasons behind this ruling:
[T]he purpose of enacting the [habeas] limitations period was
“to curb the abuse of the statutory writ of habeas
corpus, and to address the acute problems of unnecessary
delay and abuse in capital cases. It sets a one year
limitation on an application for a habeas writ and revises
the procedures for consideration of a writ in federal
court.” H.R. Conf. Rep. No. 104-518, at 111 (1996),
reprinted in 1996 U.S.C.C.A.N. 944, 944. This court has
previously held in a similar context that the federal courts
cannot tolerate an interpretation of Wisconsin law that would
render the AEDPA limitations period ineffective as to all
habeas petitioners who were convicted in Wisconsin state
Id. at 482 (quotation omitted); see also De
Jesus v. Acevedo, 567 F.3d 941, 943 (7th Cir. 2009).
Simpson admits that he has had no Section 974.06
post-conviction motion, or any other form of appeal or
collateral attack, pending since July 2014. His instant
petition is, therefore, untimely.
has also failed to exhaust his state court remedies. The
district court may not address the merits of the
constitutional claims raised in a federal habeas petition
“unless the state courts have had a full and fair
opportunity to review them.” Farrell v. Lane,
939 F.2d 409, 410 (7th Cir. 1991). Accordingly, a state
prisoner is required to exhaust the remedies available in
state court before a district court will consider the merits
of a federal habeas petition. 28 U.S.C. § 2254(b)(1)(A);
Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir.
2001) (if petitioner “either failed to exhaust all
available state remedies or raise all claims before the state
courts, his petition must be denied without considering its
merits.”). Simpson's claim arises from the
DOC's allegedly improper application of the 11-CR-123
conviction to its early release determination in September
2014. (Docket #1 at 10). This occurred after his direct
appeal had concluded and ...