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Nelson v. Douma

United States District Court, E.D. Wisconsin

August 28, 2017

KELSEY NELSON, Petitioner,
v.
TIMOTHY DOUMA, Respondent.

          ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 11), DENYING CERTIFICATE OF APPEALABILITY AND DISMISSING CASE

          HON. PAMELA PEPPER United States District Judge.

         On April 18, 2016, Kelsey Nelson filed a pro se, handwritten petition for writ of habeas corpus, challenging his 1998 convictions in Milwaukee County Circuit Court for one count each of first-degree sexual assault of a child and repeated sexual assault of the same child. Dkt. No. 1. Judge Rudolph T. Randa screened the habeas petition, and instructed the petitioner to refile it using the correct form. Dkt. No. 5. The petitioner complied, and Judge Randa ordered the respondent to answer or otherwise respond within thirty days. Dkt. No. 7. The respondent responded by filing a motion to dismiss the petition. Dkt. No. 11. The court will grant that motion, because the petition is time-barred.

         I. BACKGROUND

         A. The Petitioner's Conviction

         Following guilty verdicts on May 8, 1998, Milwaukee County Circuit Court Judge Timothy Dugan sentenced the petitioner to twenty years in prison on count one (first-degree sexual assault of a child) and forty years on count two (repeated sexual assault of the same child). Dkt. No. 12-1.

         B. The Petitioner's Post-Conviction Activities

         On April 14, 1999, the petitioner's counsel filed a motion for post-conviction relief. He argued that the court had erred in denying his request to admit evidence that the victim had a prior sexual encounter with another man that would have explained her sexual knowledge. He also argued that he should have been permitted to confront the victim with evidence of the prior assault and her prior inconsistent statement. Counsel sought access to all law enforcement records regarding a prior complaint of assault against Jeffrey Turner by the victim or her mother. After ordering the state to produce any such police reports, the Milwaukee County Circuit rejected the petitioner's arguments, finding that the victim's prior testimony was neither a prior inconsistent statement nor evidence of a prior untruthful allegation. Further, the court did not find a reasonable probability that the written police entry would have altered the trial. On August 24, 1999, the court entered an order denying the post-conviction motion. Dkt. No. 1-2 at 36.

         The petitioner appealed the judgment of conviction and the order denying post-conviction relief; he raised the same claims in the appeal. Dkt. No. 12-2 at 2. The Wisconsin Court of Appeals affirmed the judgment on October 10, 2000, dkt. no. 1-2 at 49, and the Wisconsin Supreme Court denied the petition for review on April 5, 2001, dkt. no. 1-2 at 50. The petitioner did not petition for a writ of certiorari in the United States Supreme Court.

         C. The First Federal Habeas Petition

         Meanwhile, on March 12, 2002, the petitioner filed a habeas petition in federal court, challenging the 1998 Milwaukee County Circuit Court judgment. Nelson v. Figueroa, Case No. 02-cv-255-wec (E.D. Wis.); Ex. 4. Again, he argued that the trial court should have allowed evidence and/or cross-examination regarding the victim's prior sexual activity with Turner, and her prior false allegation of sexual assault against Turner. Dkt. No. 12-4. The respondent in that case filed an answer on May 21, 2002 (after receiving an extension of time). Dkt. No. 12-5. On August 19, 2002, the petitioner filed a notice of voluntary dismissal. Id. The court never ruled on that motion, and never issued an order dismissing the case. The docket, however, shows that the case was closed as of August 19, 2002 (the day the court received the petitioner's request for voluntary dismissal).

         D. Further State Court Activities

         The electronic docket available at Wisconsin's Supreme Court and Court of Appeals Access indicates that the petitioner filed a state petition for writ of habeas corpus on February, 24, 2003, which the Wisconsin Court of Appeals denied on March 6, 2003. https://wscca.wicourts.gov (Appeal No. 2003AP000518-W). Beginning July 23, 2004, the petitioner filed a series of post-conviction motions, asking the court to modify his sentence to make the two sentences concurrent based on the amount that he had learned and accomplished in prison. Dkt. No. 1-2 at 51. Judge Dugan found the petitioner's efforts “commendable, ” but concluded that they were not sufficient for the court to modify his sentence. Id. The petitioner did not appeal.

         On November 14, 2008 and July 21, 2009, the petitioner filed pro se requests to serve the sentences concurrently because he had “grown considerably” and was “prepared to return to the community as a productive citizen.” Dkt. No. 1-2 at 52 and 58. Both requests were denied, with Milwaukee County Circuit Court Judge Carl Ashley commenting that the community was not ready for the petitioner, who had “engaged in horrific sexual acts with his stepdaughter.” Dkt. No. 1-2 at 52.

         On October 5, 2009, the petitioner filed a Wis.Stat. §974.06 motion for post-conviction relief in the circuit court. The court denied the motion on October 7, 2009, and the petitioner filed a notice of appeal. On July 9, 2010, the petitioner moved to dismiss his appeal. Dkt. No. ...


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