United States District Court, E.D. Wisconsin
TOMAS D. CUESTA, SR., Petitioner,
REED RICHARDSON, Respondent.
OVERRULING PETITIONER'S OBJECTION (DKT. NO. 11), ADOPTING
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DKT. NO.
10), GRANTING THE PETITIONER'S MOTION TO PROCEED WITHOUT
PREPAYING THE FILING FEE (DKT. NO. 5), DENYING AS MOOT THE
PETITIONER'S MOTION TO PAY FILING FEE FROM HIS RELEASE
ACCOUNT (DKT. NO. 2), DISMISSING THE PETITION (DKT. NO. 1)
AND DECLINING TO ISSUE A CERTIFICATE OF
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
2, 2017, the petitioner filed a petition for a writ of
habeas corpus under 28 U.S.C. §§2241 and
2243. Dkt. No. 1. Along with his petition, he filed a motion
to pay his filing fee from his prison release account. Dkt.
No. 2. Ten days later, the petitioner also filed a motion for
leave to proceed without prepaying the filing fee. Dkt. No.
5. Magistrate Judge Nancy Joseph reviewed these motions, and
on June 6, 2017, issued a report and recommendation. Dkt. No.
10. She recommended granting the motion for leave to proceed
without prepayment of the filing fee, but dismissing the case
without a certificate of appealability because she found that
she lacked jurisdiction under 28 U.S.C. §2244(b).
Id. On June 19, 2017, the petitioner filed an
objection to the report and recommendation. Dkt. No. 11. The
court adopts Judge Joseph's findings and conclusions in
Judge Joseph's Report and Recommendation
Joseph began by reviewing whether the petitioner had
sufficient assets to pay the $5.00 statutory filing fee. Dkt.
No. 10 at 1. She concluded that although the petitioner had
significant funds in his prison release account, he had no
assets and maintained an average monthly balance of $4.40 in
his regular account. Id. She recommended that this
court grant the petitioner's motion to proceed without
prepaying the full filing fee. Id. at 2.
Joseph then screened the petition. She found that this was
the petitioner's sixth federal court challenge to his
2001 state conviction for aggravated battery, false
imprisonment and second-degree recklessly endangering safety.
Id. She detailed the various §2254 and
§2241 challenges that the petitioner has made in both
the Eastern and Western Districts of Wisconsin. Dkt. No. 10
at 2-3. Judge Joseph noted that, in June 2014, Judge Adelman
had dismissed the petitioner's fourth petition under
§2254 as an unauthorized second or successive petition.
Id. at 3 (citing Cuesta v. Pugh, Case No.
13-cv-1303, dkt. no. 17 at 2 (E.D. Wis. June 17, 2014)).
to the current petition, Judge Joseph noted that, although
the petitioner claimed to have filed the petition under 28
U.S.C. §2241, “the proper vehicle for relief is a
petition for habeas corpus pursuant to 28 U.S.C. §2254,
” because the petitioner is in state custody on a state
conviction and seeks to vacate and set aside that conviction.
Id. (citing Walker v. O'Brien, 216 F.3d
626, 633 (7th Cir. 2000)). Treating the petitioner's
filing as a §2254 petition, Judge Joseph found that it
was subject to the Antiterrorism and Effective Death Penalty
Act's restriction against second or successive petitions,
28 U.S.C. §2244. Id. (citing Jacobs v.
McCaughtry, 251 F.3d 596, 598 (7th Cir. 2001)). Under 28
U.S.C. §2244(b)(3)(A), Judge Joseph concluded that the
petitioner could not file a second or successive petition for
habeas relief in the district court without an order
authorizing the petition from the appropriate court of
Joseph recommended that this court dismiss the petition for
lack of jurisdiction, because the petitioner had not obtained
prior permission from the court of appeals. Id. at
4. She recommended that this court decline to issue a
certificate of appealability under Rule 11 of the Rules
Governing Section 2254 Proceedings for the United States
District Court, because “jurists of reason would not
find it debatable whether this Court was correct in its
procedural ruling.” Id. at 4 (citing Slack
v. McDaniel, 529 U.S. 473, 484 (2000)).
petitioner does not object to Judge Joseph's
recommendations regarding his filing fees. He focuses his
objections on Judge Joseph's recommendation to dismiss
his petition and deny a certificate of appealability. Dkt.
petitioner begins by stating that he has problems
understanding English and the legal process, which is why he
didn't know that he could challenge “inadequacy of
complaint investigation or raising new facts because of
change [sic] law” under §2254. Id. at 2.
He states that this petition raises new facts that he never
presented at trial, because the state had withheld them.
Id. Specifically, the petitioner argues that during
his state post-conviction litigation, he discovered a new
investigative report from the Madison Police Department that
he could have used to impeach certain prosecution witnesses.
Id. at 2. He does not explain when he
discovered this allegedly withheld investigative report, but
at one point alleges that the state may have withheld this
report from him for twelve years. Id. at 3
(“Madison Department of Police investigator of the case
evidences had withhold critical information of evidences
report for more that [sic] 12 years[.]”) He does not
state whether he discovered this investigative report before
he filed any previous §2254 petitions. The remainder of
the petitioner's objection analyzes the different ways in
which he could have used the information in the investigative
report to undermine the government's case, as well as
recounting the other errors he believes the government
committed at his jury trial and at his sentencing.
Id at 3-7.
petitioner appears to concede that his petition should be
characterized as a petition under 28 U.S.C. §2254:
“Petitioner argues that review of his claims should be
grant[ed] and excuse my pro se error on the petition
number because [of the following arguments].” Dkt.
No. 11 at 1 (emphasis added). He does not specifically
contest Judge Joseph's finding that 28 U.S.C. §2254,
not 28 U.S.C. §2241, is the proper vehicle for his
petition. Nor does he contest Judge Joseph's finding that
his current petition qualifies as a “second or
successive” petition under §2244, or assert that
he has obtained authorization under §2244(b)(3)(A) to
file a second or successive petition from the appropriate
court of appeals.
petitioner argues only that he has evidence which he
didn't have at trial, and that if he'd been able to
use that evidence at trial, the outcome of his case might
have been different. If that is true, the appropriate thing
for the petitioner to have done would have been to petition
the Seventh Circuit Court of Appeals for permission to file a
second or successive habeas petition so that he
could make his newly-discovered evidence argument. He did not
do that. The petitioner has not followed the rules, and he
has not given the court any reason to reject Judge
Joseph's recommendation that the court dismiss the case
for lack of jurisdiction. 28 U.S.C. §2244(b)(3)(A) is
clear: “Before a second or successive application
permitted by this section is filed in the ...