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Wilson v. Dittman

United States District Court, E.D. Wisconsin

July 13, 2018

DAVID MARTELL WILSON, Petitioner,
v.
MICHAEL DITTMAN, Respondent.

          ORDER SCREENING HABEAS PETITION (DKT. NO. 1) AND REQUIRING THE RESPONDENT TO FILE AN ANSWER OR OTHERWISE RESPOND

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         On March 28, 2017, David Martell Wilson, who is representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his April 22, 1996 conviction in Milwaukee County Circuit Court for felony murder and felon in possession of a firearm. Dkt. No. 1. He has paid the $5.00 filing fee. This order screens the petition under Rule 4 of the Rules Governing Section 2254 Cases. Because it does not plainly appear from the face of the petition that the petitioner is not entitled to relief, the court will order the respondent to answer or otherwise respond.

         I. Background

         A jury convicted the petitioner of felony murder and felon in possession of a firearm, and the court sentenced him to serve seventy years in prison on Count One and eight years on Count Two, to run consecutively to each other. Dkt. No. 1 at 2; Dk. No. 1-3 at 1. The petitioner filed a direct appeal, arguing prosecutorial misconduct and that the trial court abused its discretion by denying his request for an adjournment or new trial. Dkt. No. 1 at 3. The Wisconsin Court of Appeals affirmed the conviction on August 11, 1998. Id. The Wisconsin Supreme Court denied the petition for review on October 14, 1998. Id.

         In 2003, a witness who testified against the petitioner at trial recanted his testimony, claiming that he testified under pressure from state actors. Dkt. No. 1 at 7, 10; Dkt. No. 1-3 at 11. In May 2014, the petitioner filed a petition for post-conviction relief in Milwaukee County Circuit Court. The circuit court denied that motion. Dkt. No. 1-3 at 6. The Wisconsin Court of Appeals affirmed the circuit court on December 1, 2015. Id. at 7. The petitioner filed a petition for review with the Wisconsin Supreme Court, which that court denied on April 6, 2016. Id. at 22. The petitioner filed the pending petition in this district on March 28, 2017. Dkt. No. 1 at 1.

         II. Rule 4 Screening

         A. Standard

         Rule 4 of the Rules Governing §2254 Proceedings provides:

If it plainly appears form the face of 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.

         A court allows a habeas petition to proceed unless it is clear to the court that the petitioner is not entitled to relief in the district court. At the screening stage, the court expresses no view on the merits of any of the petitioner's claims. Rather, the court reviews the petition and exhibits to determine whether the petitioner alleges he is in custody in violation of the “Constitution or laws or treaties of the United States.” 28 U.S.C. §2254(a). If the state court denied the petition on the merits, this court can grant the petition only if the petitioner is in custody because of: (1) “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court;” or (2) “a decision that was based on an unreasonable application determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. §2254(d).

         The court also considers whether the petitioner filed within the limitations period, exhausted his state court remedies and avoided procedural default. Generally, a state prisoner must file his habeas petition within one year of the judgment becoming final. 28 U.S.C. §2254(d)(1)(A). In addition, the state prisoner must exhaust the remedies available in the state courts before the district court may consider the merits of his federal petition. 28 U.S.C. §2254(b)(1)(A). If the district court discovers that the petitioner has included an unexhausted claim, the petitioner either must return to state court to exhaust the claim or amend his petition to present only the exhausted claims. Rose v. Lundy, 455 U.S. 509, 510 (1982).

         Finally, even if a petitioner has exhausted a claim, the district court still may be barred from considering the claim if the petitioner failed to raise the claim in the state's highest court in a timely fashion, or in the manner prescribed by the state's procedural laws. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000).

         B. The Petition

         The petitioner alleges eight grounds for relief: (1) he has newly discovered evidence of actual innocence, dkt. no. 1 at 6; (2) the state engaged in outrageous misconduct to obtain his conviction, id. at 7; (3) the jury did not know that at least one of the state's witnesses testified in exchange for not being prosecuted for the crime at issue (and other, unrelated crimes), id. at 8; (4) his post-conviction counsel was ineffective for failing to argue that the petitioner did not get a fair trial, due to the fact that he received his discovery late and the court would not grant a continuance, id. at 14; (5) the prosecutor committed prosecutorial misconduct, id. at 16; (6) his post-conviction counsel was ineffective for failing to argue that the evidence was insufficient to support a conviction, id. at 17; (7) his sentence was unconstitutional, id. at 19; and (8) the Wisconsin Court of ...


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