United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
October 20, 2016, the Court screened Petitioner's habeas
petition and ordered Respondent to respond. (Docket #12). The
Court summarized Petitioner's three alleged grounds for
relief as follows:
Little asserts in ground one that trial counsel failed to
have Michael Cramer testify as to prior false allegations by
the victim in Little's case and that the state courts
improperly ruled on credibility, invading the province of the
jury. In ground two he maintains that the state's
key witness was coerced by her father into testifying falsely
and that information regarding the coercion was purposely
withheld from Little. Little contends in ground three
that his conviction rests on perjured testimony to which the
prosecutor added additional false information.
Id. at 2 (emphasis added). Respondent answered the
petition on December 19, 2016, admitting that Petitioner
properly exhausted the ineffective-assistance-of-counsel
claim in the first part of ground one and the due process
claim of ground two. (Docket #15). However, he denied that
Petitioner properly exhausted the claims that the Court
italicized above. Id.
response to Respondent's answer, Petitioner moved to
amend his petition. (Docket #16). He acknowledged in the
motion that he did not present his third ground and the
portion of the first ground challenged by Respondent (as
italicized above) to the state courts, and he asked the Court
to strike them. Id. The Court granted that request
in an order dated March 27, 2017. (Docket #21).
months later, on August 18, 2017, Petitioner filed a request
for clarification of ground three of his petition. (Docket
#33). He asserts that although he admitted his failure to
exhaust the portion of ground three relating to prosecutorial
misconduct, he did not admit a failure to exhaust as to the
first clause of ground three, which is that his conviction
“rests entirely on coerced, false, involuntary, [and]
inconsistent testimony[.]” (Docket #1 at 8).
Essentially, Petitioner believes that the Court mistakenly
dismissed the entirety of ground three when he only agreed to
dismissal of a portion thereof. (Docket #33 at 2). He asks
for a correction of the record pursuant to Federal Rule of
Civil Procedure 60(b) and requests that Respondent be ordered
to respond to the remaining portion of ground three.
Court must deny Petitioner's request. First, it was at
his urging that the Court dismissed ground three of his
petition. See (Docket #16). Although the Court made
very clear in its March 27 order that ground three was
dismissed, Petitioner inexplicably waited five months, and
after Respondent had prepared a brief in opposition to the
petition, to question the Court's ruling. Such delay is
even if delay alone did not warrant denial of the instant
request, Petitioner's other grounds for relief adequately
cover whatever claim he seeks to assert. The other grounds he
has raised relate to allegedly false or coerced testimony,
including coercion by the victim's father,
inconsistencies in the victim's story, and the
victim's recantation of her accusations. See
(Docket #20, #32). Petitioner offers no explanation why the
broad, conclusory introductory clause to ground three-that
his conviction “rests entirely on coerced, false,
involuntary, [and] inconsistent testimony, ” (Docket #1
at 8)-adds anything to the equation. Put differently, he has
proffered no other facts, in addition to those already
encompassed in the existing grounds, which would support the
argument that there was coerced, false, involuntary, or
inconsistent testimony at his trial and that admitting such
testimony constituted a denial of due process. See
Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir. 2004)
(a habeas petitioner must plead and present evidence
supporting his theory for relief such that his argument is
“readily discernible”); Bobo v. Kolb,
969 F.2d 391, 400 (7th Cir. 1992) (petitioner must assert
more than conclusory allegations to obtain habeas relief).
Even a liberal construction of Petitioner's petition
cannot supply the core facts of his claim. See Jackson v.
Duckworth, 112 F.3d 878, 881 (7th Cir. 1997);
Dellenbach v. Hanks, 76 F.3d 820, 822 (7th Cir.
1996); Jenkins v. Doyle, No. 08-C-574, 2008 WL
3982181, at *4 (E.D. Wis. Aug. 22, 2008) (“The
conclusory ‘notice pleading' permitted in civil
suits is inadequate in habeas cases, since ‘the
petition is expected to state facts that point to a real
possibility of constitutional error.'”) (quoting
Advisory Committee Note to Habeas Rule 4).
if such additional facts exist, Petitioner did not mention
them in his brief in support of his petition. See
(Docket #20 at 15-17). Instead, his brief reveals that the
only real facts supporting ground three are either the same
facts already implicated in the other grounds or
Petitioner's accusations against the prosecutors. He has
already admitted that the latter claim remains unexhausted at
this time. At most, Petitioner seems to present the entire
constellation of challenged conduct as a nebulous mass of
unreliable evidence which violated his due process rights.
See (Docket #20 at 16). The claim, such as it is,
lacks any discernable definition. Consequently, there is no
reason to permit any part of ground three to proceed.
Jenkins, 2008 WL 3982181, at *4 (“The district
court is not required to review the entire state record to
search and determine whether any facts support the
petitioner's claim.”) (citing Adams v.
Armontrout, 897 F.2d 332, 333 (8th Cir. 1990)). The
entire ground will remain dismissed.
IT IS ORDERED that Petitioner's request
for clarification and correction of the record (Docket #33)
be and the same is hereby DENIED.
Moreover, to the extent
Petitioner's claim is that the Wisconsin courts did not
correctly assess the victim's credibility in light of all
the evidence presented at trial-which is, again, something
Petitioner does not capably define-there is no indication
that such a claim has been properly and fully exhausted in
the state courts. See (Docket #15-2, #15-7)
(Wisconsin Court of Appeals decisions on Petitioner's
direct appeal and collateral attack).
Petitioner's brief in support of
his petition has three sections corresponding to the three
grounds for relief he asserted at that time. See
(Docket #20). Respondent's brief in opposition has only
two major sections. See (Docket #32). To the Court,
it appears that Petitioner read the opposition brief and
believes that Respondent did not fully respond to all of
Petitioner's arguments. But the mere failure to have an
identical number of sections in a brief is immaterial; what
matters is whether Respondent addressed the facts and legal
claims underlying the petition. As discussed above,
Petitioner has not directed the Court to any other facts,
separate and distinct from those raised in his other grounds
for relief, that merit a ...