United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge.
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.
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.
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
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
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).
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
(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 ...