United States District Court, W.D. Wisconsin
MICHAEL R. SEEHAFER, Petitioner,
WISCONSIN DEPARTMENT OF CORRECTIONS, Respondent.
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
January 7, 2010, petitioner Michael R. Seehafer was convicted
of one count of operating while under the influence in the
Circuit Court for Marathon County in case no. 07CF699. He now
seeks a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. Seehafer raised four grounds for relief in his
petition, but the court dismissed claims 3 and 4 after
Seehafer failed to show that those claims were not barred by
the doctrine of procedural default. This left the following
two claims: (1) the state failed to turn over exculpatory
evidence; and (2) the state lacked probable cause or
reasonable suspicion to stop or detain Seehafer, and the
trial court improperly denied his motion to suppress evidence
obtained as a result of the illegal stop.
state has now filed a motion to dismiss claims 1 and 2 on the
ground that they are untimely under the applicable one-year
statute of limitations imposed by 28 U.S.C. §
2244(d)(1). Although Seehafer filed an opposition brief, his
brief ignores the state's timeliness argument completely.
The court concludes that the state's argument is correct,
however, meaning that Seehafer's petition must be
dismissed as untimely.
January 7, 2010, Michael Seehafer was convicted in Marathon
County Circuit Court on his no contest plea to sixth-offense
operating while under the influence. See State v.
Seehafer, Case No. 07CF699 (Marathon Cty. Cir. Ct.)
Seehafer appealed his conviction to the Wisconsin Court of
Appeals. The court of appeals affirmed his conviction on
February 8, 2011. (See dkt. #14-2.) Seehafer then
petitioned the Wisconsin Supreme Court for review. The court
denied his petition on May 24, 2011. (See dkt.
#14-3.) Seehafer filed a petition for certiorari in the
United States Supreme Court, which was denied on December 5,
2011. See Seehafer v. Wisconsin, 132 S.Ct. 815 (Mem)
the United States Supreme Court denied Seehafer's
petition for certiorari, Seehafer filed several motions in
Marathon County Circuit Court challenging his conviction. The
first motions were filed on April 19, 2012. The circuit court
denied the motions on April 23, 2012. (See dkt.
#14-4, which is a printout from Wisconsin's Circuit Court
Access System showing the several motions Seehafer filed.)
Seehafer then filed a motion for sentence modification in the
circuit court on August 13, 2012, a motion for a new
presentence report and resentencing on August 28, 2013, and a
motion for postconviction relief on November 6, 2013.
(See id.) The circuit court denied the motions at a
November 19, 2013 hearing and entered a written order on its
decisions on February 10, 2014. (See id.)
filed another postconviction motion and a supporting brief in
the circuit court on March 5 and 6, 2014. (See id.)
The court held a hearing on the motion on March 12, 2014, and
denied the motion orally and by written order on March 28,
2014. (See id.) Seehafer appealed the court's
order to the Wisconsin Court of Appeals, which affirmed on
April 21, 2015. (See dkt. #14-6.) The Wisconsin
Supreme Court denied Seehafer's petition for review on
September 9, 2015. (See dkt. #14-7.)
filed his habeas petition in this court on October 27, 2015.
28 U.S.C. § 2244(d)(1)(A), a petitioner seeking to file
a federal habeas petition challenging a state court
conviction must do so within one year of “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.” (Other statutory subsections
prescribe alternative dates for the start of the limitations
period, 28 U.S.C. § 2244(d)(1)(B)-(D), but petitioner
does not suggest than any of these sections apply to him and
the court cannot conceive of any basis for applying them in
this case.) In this case, petitioner's judgment of
conviction became final on November 5, 2011, when the United
State Supreme Court denied his petition for a writ of
certiorari on his direct appeal. See Clay v. United
States, 537 U.S. 522, 527 (2003) (criminal conviction is
final under habeas statute of limitations when Supreme Court
issues decision on merits or denies petition for writ of
certiorari, or when the time for filing for certiorari
one-year habeas clock continued to run until April 19, 2012,
when petitioner filed a postconviction motion in state
circuit court. By that time, 166 days had elapsed since the
statute of the limitations period began running. Under 28
U.S.C. § 2244(d)(2), time is tolled, that is, it does
not count against the one-year statutory period, while a
properly filed application for post-conviction relief is
pending in state court. Petitioner's state court motion
was pending for only 5 days; it was denied on April 23, 2012.
Petitioner did not appeal the denial of that motion, so his
habeas clock resumed on April 24, 2012, the day after his
state court motion was no longer “pending.” His
habeas clock expired 199 days later, on November 9, 2012.
petitioner filed several more postconviction motions in state
court, he filed them after his habeas clock had
already expired. Specifically, he filed nothing challenging
his conviction between April 19, 2012, when he filed his
first motion for postconviction relief, and August 7, 2013,
when he filed a motion for sentence modification. By that
time, however, his habeas clock had been expired for
approximately 8 months. Thus, these later-filed motions did
not toll his habeas clock. When Seehafer filed his petition
in October 2015, his habeas clock had been expired for more
than two years.
extraordinary situations, the one-year deadline may be tolled
under the doctrine of equitable tolling. That doctrine
applies if a petitioner 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)
(internal quotation marks omitted). Although the state raised
the issue of equitable tolling in its motion to dismiss,
petitioner made no attempt to argue that equitable tolling is
warranted in this case. In fact, petitioner's opposition
brief appears to be a copy of a brief he filed previously in
the Wisconsin Court of Appeals, and fails to address any of