United States District Court, E.D. Wisconsin
SEAN A. RIKER, Petitioner,
WARDEN GARY BOUGHTON, Respondent.
DENYING WITHOUT PREJUDICE THE PETITIONER'S MOTION FOR
ORDER TO VIEW AND COPY EXCULPATORY EVIDENCE FROM CONFISCATED
COMPUTERS (DKT. NO. 21), AND GRANTING THE PETITIONER'S
REQUEST TO WITHDRAW HIS EMERGENCY MOTION FOR RETURN OF LEGAL
WORK (DKT. NO. 24)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
petitioner has challenged his convictions on five counts of
physical abuse of a child; three counts of first-degree
recklessly endangering safety; two counts of causing mental
harm to a child; and one count each of strangulation and
suffocation, misdemeanor battery, repeated sexual assault of
a child, first-degree sexual assault of a child, possession
of a firearm by a felon and possession of a short-barreled
rifle. Dkt. No. 1. The court state court sentenced the
petitioner to total of 269 years. Id. After
screening the petition, this court concluded that the only
claims that the petitioner presented to all levels of the
Wisconsin courts were his insufficiency of the evidence and
excessive sentence claims. Dkt. No. 8 at 2. After the
petitioner responded that he would proceed solely on those
exhausted claims and the court ordered the respondent to
answer to the petition, the court dismissed the unexhausted
grounds, grounds two (ineffective trial and appellate
attorneys) and four (the introduction of alleged other acts
evidence from events that occurred in Utah). Dkt. No. 11 at
October 3, 2016, the petitioner filed a motion seeking an
order allowing him to view and copy exculpatory evidence from
his computers, which the Racine County Sheriff's
Department had confiscated. Dkt. No. 21. According to the
petitioner, approximately six months prior to his (allegedly
false) arrest, he hid in the storage data on his computers
emails that would prove he is innocent. He asked the court to
order that he be allowed to access the computers (and
indicated that he did not object to being monitored while he
did so). Id.
petitioner also filed an emergency motion for return of his
legal work. Dkt. No. 24. The petitioner alleged that during a
mass cell search, officers at the Wisconsin Secure Program
Facility (where the petitioner is incarcerated) confiscated
every piece of paper that would prove his innocence.
Id. He also alleged that the computers contained
numerous photos taken during the time he was alleged to have
been physically violent with his family; he argued that these
photos showed evidence to the contrary. Id. On March
23, 2017, the court ordered the respondent to file a brief
responding to both motions. Dkt. No. 38.
The Petitioner's Motion to View and Copy Exculpatory
Evidence Dkt. No. 21)
April 14, 2017 response, the respondent argued that the court
should deny the petitioner's motion for an order allowing
him access to his computers, because any evidence on those
computers would not be relevant to the issue pending before
this court: whether the Wisconsin Court of Appeals
unreasonably applied Jackson v. Virginia, 443 U.S.
307 (1979) when it held that the evidence presented at trial
was sufficient for a jury to find the petitioner guilty on
nine of the sixteen counts. Dkt. No. 39 at 1. The respondent
characterized the petitioner's request as a new
constitutional challenge-an argument that the prosecution
withheld exculpatory evidence (the material on the
computers). Id. at 1-2. The respondent argued that
the petitioner never had raised this claim in the state
courts (even though he alleged that he received the
exculpatory emails six months prior to his arrest), and thus
that he had not exhausted his remedies as to this claim.
Id. at 2. As to the petitioner's allegation that
the computers contain numerous photos of the petitioner's
family in a healthy and happy state, the respondent also
argued that the photos would not exculpate the petitioner,
particularly because the jury saw the same or similar photos
at trial. Id. at 3.
reply, the petitioner continues to assert that he received
the emails from his ex-wife, stating that she would set him
up and put him in prison for life, and that the thousands of
photos of his family would belie the allegations at trial
that he beat his wife and children on a daily basis. Dkt. No.
40. As to the fact that he did not raise these issues in
state court, the petitioner alleged that the Racine County
Sheriff's Department refused to let his attorney's
expert “extract a copy of anything from the computers,
” and that his attorney was incompetent. Id.
court will deny the motion without prejudice. Neither the
emails from the petitioner's ex-wife nor the family
photos are “newly-discovered evidence.” The
petitioner himself says that he hid the emails on the
computer prior to his arrest. His argument that the Racine
County Sheriff's Department refused to allow his lawyer
access to the computer is not newly-discovered evidence,
either; the petitioner has known that fact since the time
that his state case was pending. Despite having known about
this allegedly exculpatory evidence for years, the petitioner
never raised the issue in state court prior to filing a
federal habeas petition.
petitioners raise claims of actual innocence when they are
confronted with the fact that they are not entitled to
habeas relief because they have violated some
procedural rule. McQuiggin v. Perkins, 569 U.S. 383,
392 (2013). Without evidence that an independent
constitutional violation occurred during the underlying state
criminal proceedings, no court has held that a claim of
actual innocence states a ground for federal habeas
relief. Herrera v. Collins, 506 U.S. 390, 391
(1993). The Supreme Court has not resolved the question of
whether a petitioner may be entitled to habeas
relief on a freestanding claim of actual innocence.
McQuiggin, 569 U.S. at 392.
end of his motion, the petitioner indicates that if the court
denies the motion, he wants to continue to proceed on his two
exhausted claims, and raise the exculpatory evidence/actual
innocence claims in a separate habeas case (if he
loses this one). Dkt. No. 40 at 5. The petitioner later sent
a letter to the clerk of court, asking the clerk whether he
could file a second petition under 28 U.S.C. §2254 while
his first one was pending, and whether a second petition
would “void” the one that currently is pending.
Dkt. No. 41. The clerk of court appropriately responded that
it could not provide litigants with legal advice. Dkt. No.
41-1. The clerk did provide the defendant with an
informational booklet on prisoner habeas cases.
the petitioner did not raise his exculpatory evidence claim
in state court, he has not exhausted that claim and cannot
bring it in this federal habeas case. The court will
deny the petitioner's motion without prejudice.
The Petitioner's Motion for Emergency Order for
Respondent to Return Legal Work (Dkt. No. 24)
respect to the petitioner's request for the return of
legal paperwork, the respondent points out that the
petitioner himself concedes that the “bulk” of
his paperwork was returned to him, and that he has not