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Gwin v. Pollard

United States District Court, E.D. Wisconsin

August 22, 2017

SAM GWIN, JR., Petitioner,
v.
WILLIAM J. POLLARD, Respondent.

          ORDER

          J. P. Stadtmueller, U.S. District Judge.

         1. INTRODUCTION

         Petitioner Sam Gwin, Jr. (“Gwin”) filed a petition for writ of habeas corpus on September 22, 2015, and the matter was assigned to the late Judge Rudolph T. Randa. (Docket #1). On February 5, 2016, Judge Randa granted Gwin a stay of these proceedings so that he could complete his state-level litigation. (Docket #10). On January 13, 2017, this action was reassigned to this branch of the Court, and the stay was lifted on January 30, 2017. (Docket #13). Respondent filed a motion to dismiss Gwin's petition on February 24, 2017. (Docket #14). Gwin offered a response on March 27, 2017, and Respondent declined to reply. (Docket #18). For the reasons explained below, Respondent's motion must be granted because each of Gwin's claims has been procedurally defaulted.

         2. BACKGROUND

         Gwin's litigation has taken many trips to the Wisconsin Court of Appeals. That court's latest opinion provides a succinct timeline of events:

Gwin was convicted, after a jury trial, of first-degree intentional homicide and possession of a firearm by a felon. Gwin appealed, challenging the sufficiency of the evidence. We affirmed the conviction. Gwin then filed a petition for writ of habeas corpus in this court, arguing that his appellate counsel was ineffective for failing to investigate and failing to present certain information to this court. We denied the writ petition in an opinion and order dated September 9, 2015, discussing each piece of information that Gwin believed his attorney should have presented. Gwin then filed a postconviction motion pursuant to Wis.Stat. § 974.06, again arguing that his appellate attorney failed to investigate and present certain information.

State of Wisconsin v. Gwin, No. 2016-AP-229, 2016 WL 8614301, at *1 (Wis. Ct. App. Sept. 27, 2016) (citations omitted). Prior to filing the Wis.Stat. § 974.60 motion, Gwin attempted to take his habeas corpus petition, filed pursuant to Wisconsin's Knight precedent, to the Wisconsin Supreme Court. See State of Wisconsin v. Knight, 484 N.W.2d 540, 544 (1992) (directing that claims of ineffective assistance of counsel on appeal should be raised in a habeas corpus petition filed directly with the court of appeals). Gwin's attempt failed because his request for review of the appellate decision came too late. (Docket #15-7).

         Returning to Gwin's latest state court case, his Section 974.60 post-conviction motion, the Court of Appeals affirmed the circuit court's denial of that motion. As the court explained:

The State argues in its respondent's brief that the circuit court correctly denied the motion without a hearing because Gwin's claims are barred under State v. Witkowski, 163 Wis.2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991) (“A matter once litigated may not be relitigated in a subsequent postconviction proceeding no matter how artfully the defendant may rephrase the issue.”). The State asserts that Gwin's most recent postconviction motion simply reiterates or rephrases the same allegations he made in the habeas proceeding regarding ineffective assistance of counsel. Gwin has failed to file a reply brief. We consider this a concession that he has failed to raise any claim that was not previously litigated. See Schlieper v. DNR, 188 Wis.2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (a proposition asserted by a respondent on appeal and not disputed by the appellant's reply is taken as admitted). Accordingly, we conclude that Gwin's claims are barred under Witkowski[.]

Gwin, 2016 WL 8614301, at *1. The Wisconsin Supreme Court denied Gwin's petition for review of this order on January 9, 2017. (Docket #15-12).

         Gwin's petition asserts eight grounds for relief. (Docket #1 at 6-9, 13-14). Each ground is an item of evidence or testimony that Gwin believes his appellate counsel should have raised on his direct appeal. Gwin does not dispute Respondent's summary of each ground, see (Docket #18 at 3-4), and so the Court adopts them for convenience:

(1) Gwin testified that he struggled and fought with the victim before shooting him;
(2) Gwin's left ring finger was swollen after the shooting;
(3) a medical examiner's report showed that the victim was capable of voluntary movement, which allegedly would have undercut the evidence that the victim's body ...

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