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Cobbs v. Chiapete

United States District Court, E.D. Wisconsin

July 19, 2018

COURTNEY COBBS, Plaintiff,
v.
RICHARD CHIAPETE, PATRICIA HANSON, AND ARTHEL L. HOWELL, Defendants.

          REPORT AND RECOMMENDATION

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

         Plaintiff Courtney Cobbs, a state prisoner who is representing himself, filed a complaint under 42 U.S.C. § 1983 alleging that defendants violated his civil rights. The Prison Litigation Reform Act (PLRA) applies to this case because Cobbs was incarcerated when he filed his complaint. The PLRA requires courts to screen complaints brought by prisoner plaintiffs to confirm they state a claim upon which relief may be granted and are not frivolous or malicious. 28 U.S.C. § 1915A.

         On April 5, 2018, the court screened Cobbs's complaint and allowed him to proceed with a due process claim. (ECF No. 9.) About a week later, after some of the parties refused to have a magistrate judge enter final judgment, the case was reassigned to Chief Judge William Griesbach. That same day, defendants Richard Chiapete and Patricia Hanson filed a motion to dismiss. (ECF No. 14.) Judge Griesbach denied the motion without prejudice based on their failure to comply with the local rules. (ECF No. 17.) On May 4, 2018, Judge Griesbach referred the case to this court for all pretrial proceedings and designated this court “to consider and submit . . . proposed findings of fact and recommendations for the disposition of any motion . . . to dismiss . . . .” (ECF No. 18.) On May 15, 2018, defendants Richard Chiapete and Patricia Hanson filed an amended motion to dismiss. (ECF No. 26.) That motion is now fully briefed.

         A. Cobbs's Allegations

         In 2006 a jury found Cobbs guilty of crimes related to a bank robbery. Cobbs maintains that he is innocent of the crimes. In November 2014 Cobbs learned that the Racine Police Department had two blood collection kits that contained swabs from a barbed wire fence and two brown envelopes that contained jean fibers. The evidence had not been subjected to DNA testing. Cobbs filed a motion in the Racine County Circuit Court asking that the evidence be preserved and that he be allowed to pay for DNA testing of the evidence under Wis.Stat. § 974.07.

         On February 2, 2015, Racine County Circuit Court Judge Gerald Ptacek held a hearing to decide Cobbs's motion. (ECF No. 1-1 at 60.) At the hearing Judge Ptacek agreed to order that the items be preserved, but he refused to order that the items be DNA tested. He explained, “[I]n my opinion the evidence isn't really relevant and isn't weighty enough for us to order independent testing on your behalf.” (ECF No. 1-1 at 66.) He further stated,

I'm not going to order that they be tested to determine if they have DNA on them and whose DNA it might be because I don't think that even in the-taking the view that would be most favorable to you, it doesn't give evidence that would be relevant as to whether you were one of the people who committed the offense or not . . . . If it's yours, obviously it supports a conviction. If it's not your DNA evidence, it doesn't help you because there are three other people involved-two other people involved here.

(Id. at 66-67.)

         Cobbs appealed the Circuit Court's decision to the Wisconsin Court of Appeals, which placed the appeal in abeyance pending the Wisconsin Supreme Court's decision in State of Wisconsin v. Denny, 373 Wis.2d 390 (2017). (ECF No. 1-1 at 70.) Denny was set to reexamine the court's decision in State v. Moran, 284 Wis.2d 24 (2005), which held that, under Wis.Stat. § 974.07(6), a defendant had “the right to test the sought-after evidence containing biological material” at his own expense, assuming other statutory prerequisites were met. Moran, 284 Wis.2d at 51. Moran “drew a distinction between testing at private expense . . . and testing at public expense” and concluded that only when a movant seeks testing at public expense must he satisfy the heightened requirements set forth in § 974.07(7). Denny, 373 Wis.2d at 419-20.

         On February 20, 2017, the Wisconsin Supreme Court in Denny overruled Moran, holding that § 974.07's requirement that a district attorney turn over physical evidence and biological samples does not give a criminal defendant the right to conduct DNA testing of that evidence at his own expense unless he is able to meet the heightened requirements in § 974.07(7)[1]. Denny, 373 Wis.2d at 418-21.

         Following Denny, the Wisconsin Court of Appeals affirmed the circuit court's decision to deny Cobbs's request for DNA testing of the evidence. (ECF No. 1-1 at 71; ECF No. 15-2 at 1.) The Court of Appeals explained,

In Denny the Wisconsin Supreme Court reexamined Wis.Stat. § 974.07 and concluded that the statute did not independently authorize DNA testing of evidence at private expense. Rather, a movement must meet a number of conditions set forth in the statute before a court may conclude he or she is entitled to testing. Because Cobbs' motion did not meet those conditions here, we are satisfied that the circuit court properly denied it.

(ECF No. 15-2 at 2 (citations omitted).)

         Cobbs asserts that, as interpreted by Denny, Wisconsin's post-conviction DNA access statute (Wis. Stat § 974.07) is unconstitutional because it forecloses his opportunity to obtain testing of evidence at his own expense. Cobbs also asserts that the appellate court's decision to apply the Wisconsin Supreme Court's new interpretation of the statute to his request for DNA testing violated his due process rights because he made his request for DNA testing more than two years before Denny and because the ...


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