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Harris v. Smith

United States District Court, E.D. Wisconsin

March 26, 2018

JUDY SMITH, Warden, Oshkosh Correctional Institution Respondent.



         On May 11, 2017, Jeffrey Harris filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his 1978 conviction for first-degree homicide as party to a crime. Dkt. No. 1. He alleged four grounds for relief: (1) “Newly Discovered Evidence Recantation Evidence of the State's Witness, Herbert Shropshire;” (2) “Newly Discovered Evidence of Charles Hart;” (3) “Newly Discovered Evidence Of Mark Springfield;” and (4) ineffective assistance of counsel. Dkt. No. 1 at 6-10. The petitioner asked the court for an evidentiary hearing, dkt. no. 4, and asked the court to appoint counsel for him, dkt. no. 11. After Magistrate Judge Duffin screened the petition, the respondent filed a motion for extension of time to file a motion to dismiss, dkt. no. 17, along with a motion to dismiss the petition as untimely, dkt. no. 18. The petitioner subsequently filed a motion for default judgment. Dkt. No. 20. The same day, the petitioner responded to the motion to dismiss, arguing that the court should allow his claims to proceed under the gateway of actual innocence. Dkt. No. 22. The court will grant the respondent's motion for extension of time, grant the respondent's motion to dismiss the petition as untimely, deny the petitioner's motions and dismiss the petition.

         I. Background

         The petitioner challenges a conviction from May 1978-almost forty years ago. In connection with their various pleadings and motions, the parties have presented documents from federal and state court proceedings spanning the four decades from the petitioner's original conviction date to the present. The court begins by examining this history.

         A. State Court Proceedings

         1. Petitioner's May 1-4, 1978 Jury Trial

         On May 4, 1978, after a four-day trial, a jury found the petitioner guilty of attempted armed robbery as party to a crime and murder in the first degree as party to a crime for his role in the robbery of a liquor store and the shooting death of its owner, Gervis Myles. Dkt. No. 19-13 at 268.

         The evidence at trial showed that on May 27, 1976, police officer Kenneth Darton responded to a call at the Great Western Liquor Store located at 1101 West Atkinson Avenue in Milwaukee, Wisconsin. Id. at 46. Officer Darton found Gervis Myles lying on the floor in a pool of blood, with a bullet wound “in the center of his forehead just above the eyes.” Id. at 48, 50. Officer Darton also observed an empty, open, zipper-type bank bag beneath the counter and coins scattered on the floor. Id. at 49.

         Doctor Chesley P. Erwin testified at trial that he found a bullet wound in the victim's forehead, as well as “tattooing” or “stippling” around the victim's forehead, indicating “a relatively close distance of the shot.” Id. at 67. The victim's wife, Gloria Myles, identified the body and, on cross-examination, testified that her husband kept a handgun at his store. Id. at 76-77.

         An individual named Herbert Shropshire set the scene for the petitioner's involvement in the shooting. Shropshire testified that he had gone to Elnora Howze's home in the afternoon on May 27, 1976 and had found five individuals there: Mark Springfield, Trudy Joiner, Charles Hart, Elnore Howze and the petitioner. Id. at 81. He testified that the petitioner lived at Howze's home at that time. Id. Shropshire said that he knew the petitioner owned a handgun, and that he had seen the petitioner's handgun in Howze's home. Id. at 83. After arriving at Howze's home, Shropshire testified that he went to a bedroom with Hart and the petitioner, where they had a conversation about “how it is that they [could] make some quick money.” Id. at 98. After the conversation, the petitioner and Hart left the home; Shropshire followed shortly after, and when he caught up with the pair, they informed Shropshire that they were going to rob the liquor store. Id. at 82, 84. Shropshire testified that he was to act as the lookout. Id. at 84-85.

         Shropshire testified that Hart and the petitioner entered the store and “cas[ed] the place.” Id. They left the store, told Shropshire that it looked easy, and instructed Shropshire to stay outside while they went back in. Id. at 85-86. Shropshire said that he then heard a gunshot, and saw Hart and the petitioner running out of the store. Id. at 86-87. He testified that he saw a gun in the petitioner's hand as the petitioner ran from the store. Id. at 87. After seeing Hart and the petitioner run from the store, Shropshire walked in a different direction, played some basketball in the park and eventually went back to Howze's house. Id. Back at Howze's, Shropshire testified that he saw the petitioner, Hart, Elnora Howze, Trudy Joiner, Mark Springfield and Donald Carter. Id. At Howze's home, Hart and the petitioner told Shropshire that it “went down wrong” and that they had had to kill the man. Id. at 89. On cross-examination, Shropshire admitted to previously providing a statement saying that the petitioner and Hart had told him “there was a struggle” and that “[Hart and the petitioner] had to shoot him[.]” Id. at 144. Shropshire also testified that, back at Howze's, the petitioner discussed dropping a gun on the way back to the home and that Donald Carter had gone to retrieve it. Id. at 90.

         Elnora Howze testified that on May 27, 1976, Charles Hart, Herbert Shropshire, Mark Springfield and Donald Carter came to her home. Id. at 167. She testified that the petitioner had lived at her residence for around a year, and that on the day in question the petitioner had a gun in the bedroom of her house. Id. at 166-67She said that Shropshire, Hart and the petitioner held a conversation in her home, then left. Id. at 168. Howze testified that the petitioner returned to the house with Hart and that “they appeared to have been running, tired.” Id. at 169.

         Howze said she did not immediately find out where the petitioner had been, but that the petitioner asked her to go get the gun that he had dropped. Id. at 170-71. She testified that the dropped gun was the same gun that the petitioner kept in her bedroom. Id. at 171. Howze went with Charles Hart to try to retrieve it, but could not find the gun. Id. She went to look for the gun a second time with Donald Carter, but again could not find the gun. Id. at 172. She said that, eventually, Donald Carter came back to her home with the gun. Id. at 173. Howze then described how Hart and the petitioner had gone to her bathroom when they arrived back at her home, and that she overheard a conversation where the petitioner mentioned that Hart saved his life. Id. 173-74.

         Howze testified that on the day after the homicide, the petitioner gave her a demonstration of the events in the liquor store. Id.[1]at 176. Howze said that the petitioner told her that when the petitioner had approached the store counter, Myles had pulled a gun and pointed it at the petitioner's back. Id. at 194. Howze testified that the petitioner reported “scuffling on the floor of the liquor store[, ]” and that “he let go” when he heard a gunshot. Id.

         The last witness for the state, Donald Carter, said that while at the Howze household on the afternoon of May 27, 1976, the petitioner had asked him to go get a gun that the petitioner had dropped in the bushes. Id. at 203. Carter said that he found the gun, loaded, between some bushes on his second attempt to find it. Id. at 204, 207. He testified that he recognized the gun that he found in the bushes as being the same one he saw at Elnora Howze's home several days before May 27, 1976. Id. at 206.

         Although he filed a notice of alibi, id. at 22, the defendant did not testify and presented no evidence, id. at 225. After about three hours of deliberation, the jury found the petitioner guilty of attempted armed robbery as party to a crime and murder in the first degree as party to a crime. Id. at 267-68. The state court judge sentenced the petitioner to a term of life imprisonment for the first-degree murder conviction, and a term of five years for the attempted robbery, to run consecutively to the life imprisonment term. Dkt. No. 19-1.

         2. Petitioner's October 26, 1978 Direct Appeal

         The petitioner's habeas petition states that he filed a direct appeal on October 26, 1978. Dkt. No. 1 at 3. No documentation supports an October 26, 1978 filing date, but both parties provided the court with a Wisconsin Court of Appeals' decision dated March 29, 1979. Dkt. Nos. 5 at 81; 19-4. From this decision, the court gleans the following: on direct appeal, the petitioner argued that there was insufficient evidence to sustain the verdict and that the trial court erred in refusing to instruct the jury on the lesser included offense of second-degree murder. Id. at 82. After reviewing the evidence, the Wisconsin Court of Appeals affirmed the conviction, id. at 89, and on May 10, 1979, the Wisconsin Supreme Court denied the petitioner's direct appeal. Id. at 109.

         3. Petitioner's June 8, 1987 §974.06 Post-Conviction Motion

         Eight years later, on June 8, 1987, the petitioner filed a post-conviction motion in the trial court under Wis.Stat. §974.06. Id. at 113. Neither party provided the court with the trial court's decision, but both provided the Wisconsin Court of Appeals' June 28, 1988 opinion on appeal. Dkt. Nos. 5 at 113; 19-5. The court of appeals' decision indicates that the petitioner raised seven grounds for relief: (1) that there was insufficient evidence to convict him of first-degree murder; (2) that his conviction for first-degree murder rather than third-degree felony murder violated his right to due process; (3) that the trial court violated due process in instructing the jury; (4) that the State denied the petitioner a fair trial when the prosecution did not fully disclose the plea agreement it offered to one of the witnesses against him; (5) that Wis.Stat. §939.05 was unconstitutional on its face and as applied; (6) that prejudicial remarks in the prosecutor's opening and closing statements denied him a fair trial; and (7) that his trial and appellate counsel provided ineffective assistance. Dkt. No. 19-5 at 2.

         On the petitioner's ineffective assistance of counsel claim, the court of appeals noted: (1) that the petitioner argued that his trial counsel should have called Mark Springfield to testify on the petitioner's behalf; and (2) that the petitioner had submitted an affidavit from Springfield dated September 19, 1986, attesting that Springfield had fabricated an earlier statement to police that had inculpated Harris. Id. at 5-6. The court of appeals observed that, at the time of trial, the petitioner's attorney would only have had Springfield's original statement to police-the statement inculpating the petitioner. Id. The court reasoned that the petitioner's attorney would not have acted in the petitioner's interest by calling Springfield to testify about his statement inculpating the petitioner. Id. The court of appeals discussed and denied the petitioner's other grounds for relief, affirming the circuit court. Id. at 6.

         4. Petitioner's October 11, 1994 Motion for Modification of Sentence

         The respondent submitted a decision from the Wisconsin Court of Appeals dated October 11, 1994. Dkt. No. 19-6. The decision states that in December of 1993, the petitioner filed a motion for modification of his sentence in the circuit court, arguing that “new factors” warranted modifying his sentence. Id. at 3.[2]

         First, the petitioner presented his “his recent recollection that one of the investigating police officers told [the petitioner] he knew [the petitioner] did not pull the trigger. . . .” Id. at 4. In response, the court of appeals explained that the petitioner had been convicted of “first degree murder, party to the crime, under §939.05 Stats.” Id. (emphasis in original). Under the party-to-a-crime theory, the court explained, “[w]hether [the petitioner] pulled the trigger or not, he is legally responsible for the murder as a party to the crime[.]” Id.

         The petitioner also claimed that his co-defendants' sentences constituted a factor that should have been considered at his sentencing. Id. at 5. The court of appeals responded that it would not consider Charles Hart's sentence as a factor because the petitioner had not supplied a record of the length or timing of Hart's sentence. Id. As to Herbert Shropshire, the court of appeals said that because Shropshire had been convicted only of attempted armed robbery (as a result of his plea agreement) instead of first-degree murder, it would not consider Shropshire's sentence as a factor. Id. at 5-6. The court of appeals denied the motion, id. at 7, and the Wisconsin Supreme Court denied the petition for review on February 21, 1995, dkt. no. 5 at 119.

         5. Petitioner's March 7, 2000 Wis.Stat. §782.01 habeas petition

         On March 7, 2000, the petitioner filed a petition for habeas corpus in the circuit court under Wis.Stat. §782.01(1). See Dkt. Nos. 5 at 120; 19-7. The petitioner submitted a letter decision from the circuit court dated March 14, 2000, and the respondent submitted the Wisconsin Court of Appeals' decision dated June 7, 2001. Id.[3] Both the circuit court's letter decision and the court of appeals' decision held that the petitioner could not pursue §782.01 relief because he was in custody under a valid judgment of conviction entered by the circuit court in Milwaukee court in 1978. Id.

         6. Petitioner's July 27, 2000 §974.06 post-conviction motion

         A little over four months later, on July 27, 2000, the petitioner filed a motion in Milwaukee County Circuit Court under Wis.Stat. §974.06. Dkt. No. 19-8 at 3. The respondent provided both the circuit court's August 10, 2000 decision, id., and the Wisconsin Court of Appeals' December 26, 2001 decision on the motion, id. at 1.[4] The circuit court's decision remarked that the petitioner brought a “grab bag” of motions, id. at 3, and after recounting the history of the case, analyzed the petitioner's arguments for ineffective assistance of trial and appellate counsel under §974.06, id. at 3-6. The circuit court observed that although the petitioner's §974.06 motion argued that his trial counsel failed to properly investigate his case, the petitioner could have raised that argument in his original, 1987 motion or on his appeal. Id. at 5-6 (citing State v. Escalona-Naranjo, 185 Wis.2d 169, 179 (1994)). As for the petitioner's argument that his post-conviction counsel, Mark Lukoff, failed to raise various ineffective assistance of counsel issues, the circuit court found that the petitioner had raised these issues himself and that Escalona barred him from proceeding. Id. at 6.

         The Wisconsin Court of Appeals summarily affirmed the circuit's court denial of the petitioner's post-conviction motion. Id. at 2. The court concluded that “[the petitioner] is foreclosed from relitigating issues, and that his multiple ineffective assistance claims do not constitute a sufficient reason to belatedly raise issues he could have raised in his previous pro se postconviction motion.” Id.

         7. Petitioner's January 6, 2015 Knight Petition

         Fourteen years later, in January of 2015, the petitioner filed in the Wisconsin Court of Appeals a pro se petition for a writ of habeas corpus under State v. Knight, 168 Wis.2d 509, 522 (1992). Dkt. Nos. 5 at 90, 92; 19-9; see also Dkt. No. 19-11 at 2 (public records indicating the petitioner filed his petition on January 6, 2015). In an April 13, 2015 decision, the court of appeals found that the petitioner's claims of (a) ineffective assistance of trial counsel; (b) sentencing based on inaccurate information; and (c) newly discovered evidence warranting a new trial all should be presented to the trial court in a Wis.Stat. §974.06 motion. Dkt. No. 19-9 at 3-4. As for the petitioner's argument regarding ineffective assistance of appellate counsel, the court of appeals remarked that the petitioner's allegations centered on his belief that his appellate counsel should have investigated, conducted witness interviews and aided the petitioner in his pursuit of a new trial on grounds of newly discovered evidence. Id. at 4. Because the Knight petition challenged the conduct of his post-conviction counsel rather than the conduct of direct appellate counsel, the court again opined that a §974.06 motion was the appropriate mechanism for the petitioner to raise his claims. Id. at 5. The court dismissed the petition.

         8. Petitioner's April 22, 2015 §974.06 Motion

         On April 22, 2015-nine days after the court of appeals' decision-the petitioner filed in the circuit court a pro se, post-conviction motion under Wis.Stat. §974.06, seeking a new trial based on new evidence. Dkt. No. 5 at 97. The petitioner provided both the circuit court's May 5, 2015 decision denying his motion, dkt. no. 5 at 97-100, and the Wisconsin Court of Appeals' February 9, 2016 decision, id. at 102-107. The respondent provided the court of appeals' decision. Dkt. No. 19-12.

         The trial court observed that the petitioner “ha[d] appended statements from co-defendants Shropshire and Hart, plus affidavits from Pullum, and Springfield, which he claims demonstrate unequivocally that he had no knowledge of Shropshire and Hart's intent to rob the liquor store.” Dkt. No. 5 at 97. It then found that “[t]he uncorroborated statements from the co-defendants are insufficient to grant the relief requested.” Id. The trial judge detailed his concerns with the hearsay nature of the “new evidence, ” and described how “the testimony of other witnesses at trial flies in the face of defendant's current contentions and attached affidavits.” Id. at 99. Specifically, he observed that both Howze and Carter had testified about the petitioner asking them to retrieve a gun from some bushes. Id. at 99-100.

         The court of appeals first considered an affidavit dated October 3, 2014 from the petitioner's co-defendant, Charles Hart. Dkt. No. 19-12 at 5. The Hart affidavit indicated that Hart and Shropshire “decided to steal a money bag from behind the store counter without Harris knowing about it[, ]” and that the petitioner “had no knowledge that [Shropshire] and I had formed the intent to steal money from the . . . [s]tore.” Id. The court found this affidavit unpersuasive, because “[the petitioner] previously filed two statements from Hart in support of [the petitioner]'s prior postconviction motions: a signed statement dated 1986 and a notarized affidavit dated December 4, 1991.” Id. at 6. The court explained that “in Hart's 1991 affidavit, he not only asserted that [the petitioner] was not involved, but also that [the petitioner] was not even in the store at the time of the crimes, having been left by Hart and Shropshire ‘at a filling station on 17th Street.'” Id.[5] The court of appeals held that “[the petitioner] cannot relitigate this issue by submitting another affidavit from Hart again asserting that [the petitioner] was not involved in the crimes.” Id.

         The court then addressed an affidavit from Mark Springfield, dated in 2008. Id. at 7. In it, Springfield stated that he never heard the petitioner discussing a proposed robbery, and that Springfield had learned later in life that the petitioner did not have anything to do with the storeowner's death. Id. The appellate court noted that the petitioner had submitted a 1986 affidavit from Springfield (containing similar attestations) in connection with his 1987 §974.06 motion. Id. The court found that the petitioner could not relitigate the issue by submitting a new affidavit from Springfield. Id.

         Third, the court of appeals considered an April 20, 2009 affidavit from “Raymond Pullum, ” who claimed to have served prison time with Charles Hart. Id. The appellate court recounted how Pullum's affidavit stated that Hart had told Pullum that the petitioner did not have anything to do with the homicide of the storeowner. Id. The court concluded that “[a]t best, [Pullum's affidavit] could be used to bolster Hart's numerous statements that [the petitioner] was not involved, but evidence that is ‘merely cumulative' does not provide a basis for a new trial.” Id. at 7-8.

         Finally, the court of appeals described “a two-page, unsigned document entitled ‘INVESTIGATION MEMO' that purports to be a memo to ‘File' from Byron Lichstein of the University of Wisconsin Law School's Remington Center.” Id. at 8. As described by the court of appeals, the memo recounted a conversation between Lichstein-an attorney with the Wisconsin Innocence Project-and Herbert Shropshire, in which Shropshire told Lichstein: (a) that Shropshire, Hart and Harris all entered the store to buy liquor; (b) that they previously had not discussed committing a robbery; (c) that upon entering the store, Shropshire and Hart decided to commit a robbery; (d) that Hart pulled out the gun, which caused the storeowner/victim to grab the petitioner by the neck; and (e) that Hart shot the storeowner in the head. Id.

         After assuming-without deciding-that the memo was authentic and accurate, the court found that the document did not provide a basis for a new trial. Id. It noted that Shropshire's statement in the memo would be a recantation of his trial testimony, and that the memo contradicted “both the testimony offered at trial by other witnesses and by the affidavits [the petitioner] has offered in support of his postconviction motions.” Id. at 8-9. The court cited the inconsistency between the Shropshire memo (which stated that Hart had a gun) and Hart's 2014 affidavit (which stated that that none of the three men entered the store with a gun and that the victim was killed with his own gun). Id. The court dismissed the petitioner's arguments about his trial and appellate counsel because he had raised them-unsuccessfully-in prior litigation. Id. at 10. On May 5, 2016, the Wisconsin Supreme Court denied the petitioner's petition for review. Dkt. No. 5 at 125.

         B. Federal Court Proceedings

         1. Petitioner's August 29, 2002 petition for habeas corpus

         This is the not the first time that the petitioner has pursued habeas relief in federal court. The petitioner provided the court with a March 26, 2003 decision from Judge J.P. Stadtmueller in case number 02-C-851. Dkt. No. 5 at 110. In his March 26, 2003 order, Judge Stadtmueller recounted that on August 29, 2002, the petitioner had filed a petition for a writ of habeas corpus under 28 U.S.C. §2254, but that the petition did not comply with Rule 2(c) of the Rules Governing Section 2254 Cases because the petitioner failed to provide copies of the state court decisions concerning his direct appeal and post-conviction proceedings. Id. Judge Stadtmueller's decision explained that he had directed the petitioner to file an amended petition, but that while the petitioner did so, he still had not attached the documents, claiming “the necessary state court decisions ‘came up missing' from his property during the many riots and lockdowns which took place over the years at his place of incarceration.” Id. Judge Stadtmueller determined that he could not conduct a preliminary, Rule 4 review of the petition without these decisions, and dismissed the petition without prejudice. Id. at 111.

         2. Petitioner's request in the Seventh Circuit Court of Appeals

         Before filing this petition, the petitioner applied to the Seventh Circuit Court of Appeals for an order allowing him to proceed in the district court under 28 U.S.C. §2244(b)(3). Dkt. No. 5 at 129. The petitioner submitted a May 1, 2017 decision, in which the Seventh Circuit determined that the petitioner's application to bring a “second” or successive petition under 28 U.S.C. §2244(b)(3) was unnecessary. Id. Judge Posner explained that “[a] prior decision dismissing a collateral attack without prejudice does not subject a later collateral attack to the pre-approval requirement of § 2244(b).” Id. at 129-30 (citing Pavlovsky v. VanNatta, 431 F.3d 1063 (7th Cir. 2005)). Thus, the Seventh Circuit held, “[the petitioner] may file his petition directly in the district court.” Id. at 130.

         3. Petitioner's Current Petition

         On May 11, 2017-ten days after the Seventh Circuit's decision-the petitioner filed the current petition for writ of habeas corpus under 28 U.S.C. §2254, along with a request for an evidentiary hearing. Dkt. Nos. 1, 4. The next day, the petitioner filed a brief in support his petition, together with 130 pages of attachments. Dkt. No. 5.

         On May 25, 2017, Judge Duffin screened the petition, and ordered the respondent to answer or file a motion to dismiss within sixty days of the day of the screening order. Dkt. No. 10. Six days after Judge Duffin's order, the petitioner filed a motion, asking the court to appoint counsel to aid him in pursuing habeas relief. Dkt. No. 11. When the respondent refused consent to proceed before Judge Duffin, dkt. no. 16, the clerk's office transferred the case to this court.

         On July 21, 2017-several days before the respondent's deadline to answer the habeas petition-the respondent filed a motion for an extension of time to answer or otherwise respond. Dkt. No. 17. The motion asked for a four-day extension-from July 24, 2017 until July 28, 2017. Id. This court did not rule on the motion for an extension of time, and the respondent filed a motion to dismiss together with supporting documentation on July 28, 2017. Dkt. Nos. 18, 19. Within a week, the court received from the petitioner a “motion for default judgment, ” asking the court to grant default judgment in his favor due to the respondent' failure to respond within sixty days. Dkt. No. 20. That same day, the petitioner filed his brief in opposition to the respondent's motion to dismiss. Dkt. No. 22. Three weeks later, the respondent wrote a letter to the clerk of court, stating that she would not be filing a reply brief to support her motion to dismiss. Dkt. No. 25.

         II. Discussion

         A. Respondent's Motion for Extension of Time (Dkt. No. 17)

         Before getting to the substance of the petition, the court must address its failure to timely rule on the respondent's motion for an extension of time, and the consequences of that failure.

         Judge Duffin ordered the respondent to either answer the petition or file a motion to dismiss it within sixty days of the date of his Rule 4 screening order. Dkt. No. 10. He issued that order on May 25, 2017, so the sixty-day deadline was Monday, July 24, 2017. The respondent filed her motion to extend that deadline on July 21, 2017-several days before the deadline expired. The motion asked for a brief and reasonable extension-only four days.

         This court should have promptly ruled on the respondent's motion. The court did not do so, and it has no excuse other than to say that the motion fell through the cracks of the court's case tracking system. Had it seen the motion, however, it would have granted it. Under Federal Rule of Civil Procedure 6(b)(1)(A)-applicable to habeas proceedings under Rule 12 of the Rules Governing Section 2254 Cases-the court may, for good cause, extend the time for a party to act. The respondent's motion listed a number of cases that had needed counsel's attention during the sixty-day period, and asked for a short, reasonable ...

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