United States District Court, E.D. Wisconsin
ORDER DENYING PETITIONER'S MOTION TO AMEND
JUDGMENT (DKT NO. 45), AND DENIES THE MOTIONS AT DKT. NOS.
46, 47, 48, 49, 59, 60, 62, 63, 64, 65, 67, 69, 75, 77, 78,
79, 82 AND 84
PAMELA PEPPER United States District Judge.
October 24, 2016, petitioner Shafia Jones filed a petition
for writ of habeas corpus under 28 U.S.C.
§2254. Dkt. No. 1. The respondent filed a motion to
dismiss for failure to exhaust state remedies, dkt. no. 14,
and the court granted that motion, dismissing the petition
without prejudice on May 8, 2017. dkt. no. 41. The court
noted that a petitioner still had an available remedy under
state law; she could have filed a motion under Wis.Stat.
§974.06. Id. at 5. In part, the court stated:
This does not mean that the petitioner will never be able to
file a habeas petition in federal court. But before
she can come back to federal court, the petitioner first must
file a post-conviction motion in Fond du Lac County Circuit
Court, following the procedures in Wis.Stat. §974.06,
and must obtain a ruling on that motion from the Fond du Lac
Id. at 5.
three weeks later, the petitioner filed a motion under Rule
59(e) of the Federal Rules of Civil Procedure, asking the
court to alter or amend the judgment. Dkt. No. 45. She
attached to the motion her Wis.Stat. §974.06 petition,
as well as the Fond Du Lac County circuit court judge's
denial of that petition. Dkt. No. 45-1. The judge's
decision showed that the petitioner had filed her state-court
petition on May 19, 2017, and that the judge had denied it on
May 23, 2017. Id. at 1. In her Rule 59(e) motion,
the petitioner argued that the court erred in dismissing her
petition, because she is “both actually innocent and
procedurally innocent, ” and because it took the court
five months to rule on her motion to dismiss. Dkt. No. 45 at
petitioner filed her Rule 59(e) motion on May 31, 2017. Dkt.
No. 45. The following day-June 1, 2017-the court received
three more motions from the petitioner: a motion for
appointment of counsel (dkt. no. 46); a motion for an
evidentiary hearing (dkt. no. 47); and a motion asking the
court to expedite its ruling on her Rule 59 motion (dkt. no.
49). In addition to these motions, the petitioner filed a
request for a copy of the docket (dkt. no. 50) and a request
for copies of everything she had filed in the case (dkt. no.
12, 2017-twelve days after the court received her Rule 59
motion-the court received from the petitioner a notice of
appeal. Dkt. No. 54. The petitioner had appealed the
court's May 8, 2017 order dismissing her case, and had
done so before receiving the court's ruling on her Rule
next day-June 13, 2017-the court received from the petitioner
a motion for a new judge (dkt. no. 59) and a motion to change
venue (dkt. no. 60). Six days later, the court received the
petitioner's motion to add parties (dkt. no. 62), her
motion to produce copies of the record free of charge (dkt.
no. 63); her amended Rule 59(e) motion (dkt. no. 64); her
motion for summary judgment (dkt. no. 65); and her motion for
judgment (dkt. no. 67). On June 28, 2017, the court receive
another motion to change judge (dkt. no. 69), and a copy of a
letter she sent to the chief judge of the court (dkt. no.
70). In mid-August and early September, the court received
several letters from the petitioner (dkt. nos. 71, 72, 73,
74). On September 5, 2017, the court received another motion
for summary judgment (dkt. no. 75). On September 15, 2017,
the court received a motion to answer federal jurisdiction
questions (dkt. no. 77); a motion to transfer the petitioner
to another institution (dkt. no. 78); and an expedited motion
for ruling on the Rule 59(e) motion (dkt. no. 79). Finally,
she has filed a motion for a jury trial (dkt. no. 82) and
another motion to substitute judge (dkt. no. 84). All told,
in the four months since she filed her Rule 59(e) motion, the
petitioner has filed seventeen (18) motions.
59(e) allows a court to alter or amend a judgment if a party
asks the court to do so no later than twenty-eight days after
the judgment is entered. The court received the
petitioner's Rule 59(e) motion twenty-three days after it
entered judgment; her motion was timely filed.
law, however, provides very specific grounds for granting a
motion to alter or amend judgment. A court may grant such a
motion “only if the petitioner can demonstrate a
manifest error of law or present newly discovered
evidence.” Obriecht v. Raemisch, 517 F.3d 489,
494 (7th Cir. 2008) (citation omitted). The petitioner in
this case has not presented the court with any
newly-discovered evidence. In order for the court to grant
her motion, then, she must demonstrate a manifest error of
petitioner argues that the court took five months to rule on
the respondent's motion to dismiss (and on all the
motions she had filed prior to the court's ruling). That
delay does not constitute a “manifest error of
law.” “A ‘manifest error' is not
demonstrated by the disappointment of the losing party. It is
the ‘wholesale disregard, misapplication, or failure to
recognize controlling precedent.'” Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
2000) (citation omitted). A five-month wait to receive a
decision is not the wholesale disregard, misapplication or
failure to recognize controlling precedent.
petitioner argues that she has exhausted her remedies. It is
true that the petitioner paid attention to the court's
May 8, 2017 order, which told her that she could exhaust her
remedies in state court by filing a Wis.Stat. §974.06
petition there. She filed that petition, the state court
judge denied it on May 23, 2017, and she received his
decision on May 26, 2017. Dkt. No. 45-1. She still has not
exhausted her state remedies, however. She has not appealed
the state court judge's decision. “Exhaustion is
accomplished when claims have been presented to the highest
state court for a ruling on the merits . . . .”
Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991).
The petitioner will not have exhausted her claim until she
has appealed the state court judge's denial of her
§974.06 petition all the way to the Wisconsin Supreme
the petitioner had now fully exhausted her state
court remedies, she could not demonstrate that this
court's May 8, 2017 decision that she had not exhausted
her remedies constitute a manifest error of law. As of May 8,
2017, the petitioner had not exhausted her remedies;
doing so after the fact does not mean that the court erred
when it said she hadn't done so at the time of the
petitioner argues that the court should grant her Rule 59(e)
motion because she is actually innocent of the crime with
which she was charged. The Supreme Court has held that actual
innocence can be a “gateway” to federal
habeas relief when a petitioner faces a procedural
bar. McQuiggin v. Perkins, 133 S.Ct. 1924, 1928
(2013) (citations omitted). But in order to take advantage of
the actual innocence “gateway, ” a petitioner
must “persuade the district court that, in light of
the new evidence, no juror, acting reasonably, would have
voted to find [her] guilty beyond a reasonable doubt.”
Id. (quoting Schlup v. Delo, 513 U.S. 298,
original federal habeas petition, the petitioner
stated the following in support of her claim of actual
Petitioner is innocent of the crime in which she has been
illegally convicted of and State of WI Fond Du Lac lacks
evidence to prove beyond a reasonable doubt. Also there are
no elements of the crime to constitute Petitioners alleged
guilt of crime of Robbery of a Financial Institution.
Petitioner is innocent of the crime and should have all
charges vacated and Petitioner shall be exonerated and have
Dkt. No. 1 at 7-8. This does not constitute evidence that no
reasonable juror would have voted her guilty on the bank
robbery charge. It does not constitute evidence at ...