United States District Court, E.D. Wisconsin
ORDER DENYING MOTION FOR RELIEF FROM
WILLIAM E. DUFFIN, U.S. Magistrate Judge
Emmanuel James, a Wisconsin state prisoner, petitioned for a
writ of habeas corpus under 28 U.S.C. § 2254. (ECF No.
1.) His petition was denied. (ECF No. 24.) The United States
Court of Appeals for the Seventh Circuit denied James's
request for a certificate of appealability on June 22, 2017.
(ECF No. 36.) Pursuant to Federal Rule of Civil Procedure
60(b)(1), James now seeks relief from a final judgment
denying habeas relief. (ECF No. 37.)
court found that James's prosecutorial misconduct claim
was procedurally defaulted based on a firmly established
procedural rule in Wisconsin. (ECF No. 24 at 10-11.) James
had argued that his claim should not be procedurally barred
because the respondent had not shown that the state law
ruling was both independent of federal law and adequate to
hold James responsible for violating it. He also alleged that
the procedural default in question has not been regularly and
consistently followed in Wisconsin. James did not cite case
law supporting either argument. (ECF No. 24 at 10.) James now
alleges the court made a mistake in determining that his
prosecutorial misconduct claim was procedurally defaulted.
(ECF No. 37 at 3.)
considering a Rule 60(b) motion the court must first
determine whether the motion is a second or successive habeas
petition or whether it is a “true” 60(b) motion.
Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir.
2006); see also Gonzalez v. Crosby, 545 U.S. 524
(2005). A motion asserting that the federal district court
incorrectly dismissed a petition for procedural default
constitutes a true Rule 60(b) motion. Spitznas at
1216. James states that he is attacking a defect in the
habeas proceeding rather than a defect in the judgment of
conviction. (ECF No. 37 at 1.) Thus, it appears that
James's motion is a “true” 60(b) motion.
under Rule 60(b) is an extraordinary remedy granted only in
exceptional circumstances.” Nelson v.
Napolitano, 657 F.3d 586, 589 (7th Cir. 2011).
“Rule 60(b) cannot be used to seek relief on the basis
that the movant's conviction was based on a
mistake of law, for that is territory occupied by
AEDPA.” Dunlap v. Litscher, 301 F.3d 873, 876
(7th Cir. 2002) (emphasis added). James relies on Rule 60(b)
not on the basis that his conviction was based on a
mistake of law, but rather on the basis that the district
court's finding that his prosecutorial misconduct claim
was procedurally defaulted was a mistake of law.
error is not a proper ground for relief under Rule 60(b).
Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir. 2002).
Rule 60(b) was designed to address mistakes attributable to
special circumstances and not merely to erroneous
applications of law. Russell v. Delco Remy, 51 F.3d
746, 749 (7th Cir. 1995). That being said, the district court
has discretion to correct errors that would be correctable on
appeal. See Mendez v. Republic Bank, 725 F.3d 651,
654 (7th Cir. 2013).
discussed in this court's order denying James's
habeas petition, relying on State v. Marinez, 2011
WI 12, ¶ 49, 331 Wis.2d 568, 797 N.W.2d 399 (“A
defendant who fails to object at the time of alleged errors
by the prosecutor risks forfeiting review of such errors on
appeal.”), the Wisconsin Court of Appeals dismissed
James's prosecutorial misconduct claim because he did not
object at trial to the government's use of allegedly
perjurious testimony. (ECF No. 24 at 9.) This court found
that, in dismissing James's prosecutorial misconduct
claim, the Wisconsin Court of Appeals relied on an adequate
and independent state law ground. (ECF No. 24 at 11.)
argues that the Wisconsin Court of Appeals, and in turn this
court, was wrong when it precluded his prosecutorial
misconduct claim from review on grounds of a state procedural
bar. Citing to Wis.Stat. § 974.02, he contends that the
claim was properly raised in a postconviction motion. (ECF
No. 37 at 2.) However, the authority upon which he relies,
State v. Hayes, 167 Wis.2d 423, 481 N.W.2d 699, 700
(Ct. App. 1992), does not address the issue presented in his
petition and motion for relief from judgment-whether a claim
for prosecutorial misconduct must be raised at trial or
whether it can be raised for the first time (as James argues)
in a postconviction motion.
it is true that, before a defendant may appeal certain
claims, he must first raise them in a postconviction motion,
that does not change the fact that certain objections must be
made during trial or they will be waived. In other words, the
ability to file postconviction motions does not relieve a
party of his obligation to preserve certain claims by
objecting at trial when the court still has the ability to
correct any alleged errors. Under Wisconsin law, one of those
objections is prosecutorial misconduct. See State v.
review of this court's original decision, as well as the
case law and statutes presented by James, the court cannot
say that James is entitled to relief under Rule 60(b).
IS THEREFORE ORDERED that James's motion for