United States District Court, E.D. Wisconsin
MARK A. STEPHENS, Petitioner,
LIZZIE TEGELS, Respondent.
RECOMMENDATION ON PETITION FOR A WRIT OF HABEAS
WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE.
Stephens, who is incarcerated pursuant to the judgment of a
Wisconsin Circuit Court, filed a petition for a writ of
habeas corpus. (See ECF No. 1 at 2 (identifying the
underlying state court case number as Waukesha County Circuit
Court case number 2002CF000886)). Stephens has consented to
the full jurisdiction of a magistrate judge. (ECF No. 3.)
Therefore, the court must now screen the petition in
accordance with Rule 4 of the Rules Governing Section 2254
Cases, which states:
If it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner. If the petition is
not dismissed, the judge must order the respondent to file an
answer, motion, or other response within a fixed time, or to
take other action the judge may order.
previously sought and was denied a petition for a writ of
habeas corpus regarding the same underlying state court
conviction. Stephens v. Thurmer, No. 09-C-760, 2010
U.S. Dist. LEXIS 87888 (E.D. Wis. Aug. 25, 2010); see
also Stephens v. Thurmer, 09-CV-760, ECF No. 1 at 2
(identifying the underlying state court case number as
Waukesha County Circuit Court case number 2002CF000886). The
Court of Appeals for the Seventh Circuit denied
Stephens's request for a certificate of appealability
(Case No. 09-CV-760, ECF No. 38-1), and the United States
Supreme Court denied Stephens's petition for writ of
certiorari, Stephens v. Thurmer, 563 U.S. 980, 131
S.Ct. 2887, 179 L.Ed.2d 1199 (2011).
the issues he seeks to raise in his present petition are
distinct from those presented in his prior petition, Stephens
is nonetheless required to obtain leave from the court of
appeals before this court can consider the petition.
See 28 U.S.C. § 2244(b)(3). This may have been
what Stephens had been attempting when he filed his present
petition with the Court of Appeals for the Seventh Circuit.
However, Stephens did not explicitly state he was seeking
leave to file a second petition. Thus, from the court of
appeals' perspective, it looked as if Stephens had simply
filed his petition in the wrong court. (See ECF No.
1-2 (letter from court of appeals Pro Se Clerk stating,
“The U.S. Court of Appeals received this document in
error. We are forwarding it to the Eastern District of
Wisconsin (Green Bay) for your consideration.”).)
has not obtained authorization from the court of appeals to
file this petition. “A district court must dismiss a
second or successive petition, without awaiting any response
from the government, unless the court of appeals has given
approval for the filing.” In re Page, 170 F.3d
659, 661 (7th Cir. 1999) (quoting Nunez v. United
States, 96 F.3d 990, 991 (7th Cir. 1996)). Therefore,
the court must recommend that Stephens's petition be
Stephens wishes to proceed with his petition, he must first
turn again to the Court of Appeals for the Seventh Circuit,
this time making clear that he is seeking permission to
proceed with a second habeas petition in this district.
See Cir. R. 22.2 (7th Cir). The procedure for making
such a request is set forth in Circuit Rule 22.2:
Rule 22.2. Successive Petitions for Collateral Review
request under 28 U.S.C. § 2244(b) or the final paragraph
of 28 U.S.C. § 2255 for leave to file a second or
successive petition must include the following information
and attachments, in this order:
(1) A disclosure statement, if required by Circuit Rule 26.1.
(2) A short narrative statement of all claims the person
wishes to present for decision. This statement must disclose
whether any of these claims has been presented previously to
any state or federal court and, if it was, how each court to
which it was presented resolved it. If the claim has not
previously been presented to a federal court, the applicant
must state either:
(A) That the claim depends on a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court; or
(B) That the factual predicate for the claim could not have
been discovered previously through the exercise of due
diligence and that the facts, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish
by clear and convincing evidence that no reasonable
fact-finder would have found the applicant guilty of the
crime, had there been no constitutional error.
(3) A short narrative statement explaining how the person
proposes to establish the requirements mentioned above. An
applicant who relies on a new rule of constitutional law must
identify the new rule, the case that establishes that rule,
and the decision of the Supreme Court ...