United States District Court, E.D. Wisconsin
WILLIE D. PENDER, JR., Petitioner,
WARDEN SCOTT ECKSTEIN, Respondent.
Stadtmueller U.S. District Judge
Willie D. Pender, Jr. (“Pender”) filed a petition
for writ of habeas corpus on July 27, 2017. (Docket
#1). On November 30, 2017, Magistrate Judge William E. Duffin
screened Pender's petition and found that he could
proceed. (Docket #11). This action was reassigned to this
branch of the Court on December 6, 2017. On January 22, 2018,
Respondent moved to dismiss Pender's petition. (Docket
#15). Pender has not filed an opposition to Respondent's
motion and the time in which to do so has expired. (Docket
#11 at 3). For the reasons explained below, Pender's
petition must be dismissed as untimely.
February 2006, Pender pled guilty to one count of
second-degree reckless homicide while armed and one count of
being a felon in possession of a firearm in Milwaukee County
Circuit Court case number 2005-CF-3654. (Docket #16-1 at 1).
Pender's appellate counsel then pursued a no-merit appeal
in the Wisconsin Court of Appeals. (Docket
#16-2). The Wisconsin Court of Appeals
summarily affirmed Pender's judgment of conviction on
July 3, 2007. Id. Pender did not file a petition for
review with the Wisconsin Supreme Court. Id.
nine years later, on March 18, 2016, Pender filed a
postconviction motion in the Milwaukee County Circuit Court.
(Docket #16-3). That motion was Pender's first filing in
his criminal case since his convictions had been affirmed.
Id. The circuit court denied the motion and Pender
appealed. Id. The Wisconsin Court of Appeals
summarily affirmed. (Docket #16-7). Pender filed a petition
for review in the Wisconsin Supreme Court, which was denied
on June 12, 2017. (Docket #16-8 and #16-9).
Court could summarily grant Respondent's motion in light
of Pender's non-response. See Civ. L. R. 7(d).
In any event, Respondent's timeliness argument is
indisputably correct. State prisoners seeking federal habeas
review have one year from the date their judgment of
conviction became final to file their petition. 28 U.S.C.
§ 2244(d)(1). A judgment is “final” under
this rule at “the conclusion of direct review [in the
state appellate courts] or the expiration of the time for
seeking such review.” Id. §
2244(d)(1)(A); Ray v. Clements, 700 F.3d 993, 1003
(7th Cir. 2012). Pender had thirty days from July 3, 2007 to
seek review in the Wisconsin Supreme Court. Wis Stat.
§§ 809.62(1m), 808.10(1). Because he chose not to,
Pender's conviction became final on August 3, 2007. His
federal habeas petition needed to be filed by August 3, 2008.
Pender's petition was thus almost nine years too
late. Pender has two potential avenues to excuse
his tardiness- the “actual innocence gateway, ”
Gladney v. Pollard, 799 F.3d 889, 895 (7th Cir.
2015), and equitable tolling, Socha v. Boughton, 763
F.3d 674, 683 (7th Cir. 2014)-but he has not asserted either.
The Court will not do so for him.
reasons stated above, Respondent's motion to dismiss must
be granted. Still, under Rule 11(a) of the Rules Governing
Section 2254 Cases, “the district court must issue or
deny a certificate of appealability when it enters a final
order adverse to the applicant.” To obtain a
certificate of appealability under 28 U.S.C. §
2253(c)(2), Pender must make a “substantial showing of
the denial of a constitutional right” by establishing
that “reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (internal citations omitted). Further, when the
Court has denied relief on procedural grounds, the petitioner
must show that jurists of reason would find it debatable both
that the “petition states a valid claim of the denial
of a constitutional right” and that “the district
court was correct in its procedural ruling.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000). As the Court
discussed above, reasonable jurists would not debate whether
the petition should have been resolved in a different manner.
As a consequence, the Court is further compelled to deny a
certificate of appealability as to Pender's petition.
the Court closes with some information about the actions that
Pender may take if he wishes to challenge the Court's
resolution of this case. This 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 30
days of the entry of judgment. See Fed. R. 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 30-day deadline.
See Fed. R. App. P. 4(a)(5)(A). Moreover, under
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 Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of
judgment. The Court cannot extend this deadline. See
Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of
Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. Id.
A party is expected to closely review all applicable rules
and determine what, if any, further action is appropriate in
IT IS ORDERED that Respondent Scott
Eckstein's motion to dismiss (Docket #15) be and the same
is hereby GRANTED;
IS FURTHER ORDERED that Petitioner Willie D. Pender,
Jr.'s petition for a writ of habeas corpus
(Docket #1) be and the same is hereby
IS FURTHER ORDERED that a certificate of
appealability as to Petitioner Willie D. Pender, Jr.'s