United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge
Gabriel Griffin (“Griffin”), proceeding pro
se, has filed two petitions for a writ of habeas corpus
in two separate cases pending before this Court. These
actions are related and will be addressed together. Both
petitions are brought pursuant to 28 U.S.C. § 2254 and
assert the illegality of Griffin's conviction and
sentence in a state criminal case.
of the Rules Governing § 2254 Cases in the United States
District Courts authorizes a district court to conduct an
initial screening of habeas corpus petitions and to dismiss a
petition summarily where “it plainly appears from the
face of the petition…that the petitioner is not
entitled to relief.” This rule provides the district
court the power to dismiss both those petitions that do not
state a claim upon which relief may be granted and those
petitions that are factually frivolous. See Small v.
Endicott, 998 F.2d 411, 414 (7th Cir. 1993). Upon an
initial Rule 4 review of habeas petitions, the court will
analyze whether the petitioner has avoided statute of
limitations bars, exhausted available state remedies, avoided
procedural default, and set forth cognizable constitutional
or federal law claims.
petitions challenge his conviction and sentence in Milwaukee
County Circuit Court case number 11-CF-1746. In that case,
Griffin was found guilty, following a jury trial, of criminal
trespass to a dwelling and disorderly conduct. He succeeded
in arguing to a Wisconsin appellate court that his sentence
was contrary to Wisconsin law, and his case was remanded for
re-sentencing. He now challenges, in two separate habeas
corpus petitions before this Court, the conviction and
sentence imposed in that case.
first petition, Griffin contends that the
state failed to disclose impeachment evidence after his
specific request for the same. (Case No. 17-CV-697, Docket #1
at 6-7). In the second petition, he asserts a number of
different constitutional issues. (Case No. 17-CV-870, Docket
#1 at 6-8). First, Griffin says that his sentence was vacated
on appeal, but precisely the same sentence was imposed upon
remand, in violation of his due process rights. Id.
at 6-7. Second, he alleges that because his sentences were
unlawful (namely too long), the Wisconsin Department of
Corrections violated his Eighth Amendment rights by holding
him for longer than what should have been allowed.
Id. at 7-8. Third, Griffin filed a petition for a
writ of mandamus with the Wisconsin Court of Appeals,
requesting that the trial court be ordered to give him a
proper sentence. Id. at 8. He claims that the Court
of Appeals' rejection of that petition was based on an
unreasonable determination of both fact and law. Id.
Finally, Griffin asserts without explanation that the Fifth
Amendment's protection against double jeopardy was
violated by his state prosecution. Id. at 9.
has already attempted to challenge his conviction from
Milwaukee County Circuit Court case number 11-CF-1746 in
previous federal petitions for a writ of habeas corpus.
See Gabriel Griffin v. Timothy Douma, 13-CV-616-WEC;
Gabriel Griffin v. Michael Hafemann, 15-CV-323-WCG.
The first of Griffin's prior Section 2254 petitions was
dismissed without prejudice for procedural default.
See (Case No. 13-CV-616-WEC, Docket #17). The second
was dismissed for failure to state a claim. See
(Case No. 15-CV-323-WCG, Docket #7). Because Griffin has had
“one ‘full and fair opportunity to raise a
[federal] collateral attack'” on his conviction and
sentence, Altman v. Benik, 337 F.3d 764, 766 (7th
Cir. 2003) (quoting O'Connor v. United States,
133 F.3d 548, 550 (7th Cir. 1998)), his instant petitions
must be dismissed as “second or successive.” 28
2244(b) requires petitioners to get permission from the
courts of appeals before filing second or successive
petitions in the district courts. Altman, 337 F.3d
at 766. Not every petition counts for purposes of Section
2244(b); for example, petitions that were dismissed for
“technical or procedural deficiencies that the
petitioners can rectify before refiling their
petitions” do not count as a prior petition.
Id. In those cases, later petitions are not
considered second or successive and can be filed without
permission from the courts of appeals. Id. However,
petitions that have been denied on the merits and petitions
that have been denied based on a procedural default “do
count as prior petitions because the petitioner is incapable
of curing the defect underlying the district court's
even if Griffin's first petition in Case No.
13-CV-616-WEC was not a sufficient predicate to make his
instant petitions “second and successive, ” his
second petition in Case No. 15-CV-323-WCG certainly was. This
Court lacks jurisdiction to entertain an unauthorized second
or successive Section 2254 petition. Curry v. United
States, 507 F.3d 603, 604-05 (7th Cir. 2007). Griffin
has not provided a certification from the Court of Appeals
authorizing the instant petitions, and they must, therefore,
under Rule 11 of the Rules Governing Section 2254 Proceedings
for the United States District Courts, “the district
court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.” That
is true even when a movant is appealing from the dismissal of
an unauthorized second or successive motion. See Sveum v.
Smith, 403 F.3d 447, 448 (7th Cir. 2005). To obtain a
certificate of appealability, the petitioner 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). Based on the analysis above,
reasonable jurists would not debate whether Griffin's
petitions should have been resolved in a different manner. As
a consequence, the Court is compelled to deny a certificate
of appealability as to Griffin's petitions.
IT IS ORDERED that Griffin's petitions
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
(Case No. 17-CV-697-JPS, Docket #1) and (Case No.
17-CV-870-JPS, Docket #1) be and the same are hereby
IS FURTHER ORDERED that certificates of
appealability as to Griffin's petitions (Case No.
17-CV-697-JPS, Docket #1) and (Case No. 17-CV-870-JPS, Docket
#1) be and the same are hereby DENIED; and
IS FURTHER ORDERED that both actions, (Case No.
17-CV-697-JPS) and (Case No. 17-CV-870-JPS), be ...