United States District Court, E.D. Wisconsin
ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION
(DKT. NO. 10), DISMISSING CASE AND DENYING CERTIFICATE OF
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
December 6, 2017, Magistrate Judge David E. Jones issued a
recommendation that the court dismiss the petitioner's
habeas petition on preliminary review. Dkt. No. 10.
Judge Jones advised the petitioner that if he objected to the
judge's recommendation, he needed to file his written
objections within fourteen days of the date he was served
with the recommendation. To date, petitioner has not filed an
objection. (It appears that the petitioner now has been
released from custody and is on extended supervision. The
petitioner has not filed a change of address from with the
court, nor did he notify the court of his release.)
Fed.R.Civ.P. 72(b), if a party does not object to a
magistrate judge's report and recommendation, the
district court reviews the magistrate judge's
recommendation for clear error. Fed.R.Civ.P. 72(b);
Johnson v. Zema Systems Corp., 170 F.3d 734, 739
(7th Cir. 1999) (citations omitted). This court must decide
only whether Judge Jones' report and recommendation are
clearly erroneous. The court concludes that they are not.
granting the petitioner leave to proceed without paying the
filing fee, Judge Jones noted that the petitioner appeared to
have been filed his habeas petition more than eleven
years after the statute of limitations had run. Dkt. No. 8 at
3. The petitioner filed a response, arguing that there were
extraordinary circumstances outside of his control that
explained why he missed the statute of limitations deadline;
he asserted that his state appellate counsel had
“abandoned” him without informing him of the
federal habeas deadline, and that he was mentally
incompetent to seek habeas relief prior to the
statute of limitations deadline. Dkt. No. 9 at 1. He
indicated that he did not become competent until
“around July of 2015.” Id. at 2. He
stated that he had been trying to exhaust his state remedies
since then. Id. The petitioner also told Judge Jones
that failure to review and grant his petition would result in
a fundamental miscarriage of justice, because no reasonable
juror would have found him guilty without the state
court's alleged errors. Id.
petitioner filed his federal habeas case on November
2, 2017. Dkt. No. 1. He appears to have appealed his state
judgment and conviction; the court of appeals ruled against
him, he says, in June 2004, and he says his petition for
review was denied in November 2004. Dkt. No. 1 at 3. So the
petitioner filed his federal habeas more than twelve
years after his direct appeal became final. He indicates that
he filed a post-conviction motion in September 2015, that the
court denied the motion, and that he did not appeal to the
highest court in the state. Id. at 4-5. He also
filed a state habeas petition in November 2015; that
petition was denied in July 2017, and when asked whether he
appealed to the highest court in the state, the petitioner
responded that he was “denied access” to the
courts by the DOC. Id. at 5. He filed another
habeas petition in the Wisconsin Court of Appeals;
he does not say when he filed it, but the case number shows
it was filed in 2017. Id. at 5-6. He says that
petition was denied on April 3, 2017, and that he did not
appeal it to the highest court. Id. at 6. By the
petitioner's own account, then, he did not file his
petition until over twelve years after the one case in which
he had exhausted his remedies became final.
recommendation, Judge Jones considered whether the
petitioner's explanation for his delay-that he was
mentally incompetent to seek habeas relief until
July 2015, and that failure to review and grant his petition
would constitute a miscarriage of justice-provided a basis
for “equitably tolling” the federal
habeas statute of limitations. Dkt. No. 10 at 3. He
noted that under Holland v. Florida, 560 U.S. 631
(2010), a court could equitably toll the federal
habeas statute of limitations, but also pointed out
that the burden is on the petitioner to show that there was
some extraordinary circumstance that had prevented him from
filing timely. Id., citing Carpenter v.
Douma, 840 F.3d 867, 870 (7th Cir. 2016). Judge Jones
exercised his discretion, and declined to apply the equitable
tolling doctrine, noting that while the petitioner claimed
that he had not been competent to pursue federal
habeas relief until July 2015, he had provided no
evidence or proof that his competency ever was at issue.
Id. at 4. Judge Jones even looked on the Wisconsin
Circuit Court Access web site, and reviewed the docket in the
petitioner's case; he could find no indication that the
petitioner ever had raised his competency in that case.
Id. (This court reviewed the same docket, and comes
to the same conclusion.) Judge Jones found that, without
medical records or some other evidence showing that the
petitioner ever was incompetent, the petitioner had not
demonstrated the “extraordinary circumstances”
necessary to support application of the equitable tolling
the petitioner's claim that failure to review and grant
his petition would result in a miscarriage of justice because
he was actually innocent, Judge Jones correctly concluded
that the petitioner had not provided any evidence that he did
not possess the cocaine with the intent to distribute it.
Without such proof, the petitioner cannot sustain a claim of
actual innocent, or demonstrate a miscarriage of justice.
court agrees with all of Judge Jones's conclusions, and
finds that his recommendation that this court dismiss the
petition was not clearly erroneous.
court ADOPTS the recommendation of the
magistrate judge to dismiss the habeas petition on
preliminary review and deny a certificate of appealability.
Dkt. No. 10.
court ORDERS that this case is
DISMISSED as untimely filed. The court
DENIES a certificate of appealability. The
clerk will enter judgment accordingly.
order and the judgment to follow are final. A dissatisfied
party may appeal this court's decision to the Court of
Appeals for the Seventh Circuit by filing in this court a
notice of appeal within thirty (30) days of
the entry of judgment. See Fed. R. of App P. 3, 4.
This court may extend this deadline if a party timely
requests an extension and shows good cause or excusable
neglect for not being able to meet the thirty-day deadline.
See Fed. R. App. P. 4(a)(5)(A).
certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Rule 59(e) must be
filed within twenty-eight (28) days of the
entry of judgment. The court cannon extend this deadline.
See Fed.R.Civ.P. 6(b)(2). Any motion under Rule
60(b) must be filed within a reasonable time, generally no
more than one year after the entry of judgment. The court
cannot extend this deadline. See Fed.R.Civ.P.
court expects parties to closely review all applicable rules
and determine, what, if any, further ...