United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
January 2000, Petitioner was convicted of homicide, as well
as weapon and drug charges, in Milwaukee County Circuit
Court. (Docket #1 at 2). He was sentenced to 25 years'
imprisonment in March 2000. Id. He filed a direct
appeal which ended, unsuccessfully, in the Wisconsin Supreme
Court in July 2001. Id. at 3. Nothing was heard from
him until he sent correspondence to the state trial court in
June 2018. Id. at 4. In those letters, Petitioner
asserted that the court lacked jurisdiction to convict and
sentence him because his last name was Cobb, not Gibson.
Id. Petitioner says he received no response.
filed this habeas action on November 30, 2018. Id.
He makes four claims. First, Petitioner alleges that the
Milwaukee County Circuit Court lacked jurisdiction over him
because it did not use his legal name during the criminal
proceedings. Id. at 6-7. Second, he asserts that the
criminal complaint in his case did not have his name and
address on it and that some of the charges in the complaint
were false. Id. at 7-8. Third, Petitioner maintains
that he received ineffective assistance of counsel because
his attorney was overburdened with other work and did not
devote sufficient time to Petitioner's case. Id.
at 8. Finally, Petitioner offers a jumbled claim related to
issues he had with a related juvenile court proceeding.
Id. at 9.
action was originally assigned to Magistrate Judge William E.
Duffin. On January 9, 2019, Judge Duffin screened the
petition and issued a recommendation to this Court that the
case be dismissed. (Docket #9). He did so for three reasons:
First, his petition appears untimely. According to the
petition and the public records of the Wisconsin Court of
Appeals and Wisconsin Supreme Court, the Wisconsin Supreme
Court denied Gibson's petition for review on August 21,
2001. Therefore, Gibson's conviction became final under
28 U.S.C. § 2244(d)(1)(A) on November 19, 2001, when the
deadline for seeking review by the United States Supreme
Court passed without Gibson seeking review. Gibson had one
year from that date-until November 19, 2002-in which to seek
federal habeas corpus relief. See 28 U.S.C. §
But because the one-year statute of limitations is an
affirmative defense that the respondent may waive, it is
usually inappropriate to dismiss a petition as untimely at
this preliminary stage. See Tate v. Borgen, No.
04-C-1019, 2005 U.S. Dist. LEXIS 48282, at *23 (E.D. Wis.
July 26, 2005). Moreover, the one-year statute of limitations
is subject to equitable tolling, and “it is difficult
to conceive of a situation where a claim of equitable tolling
would be clear on the face of the petition.” Gildon
v. Bowen, 384 F.3d 883, 886 (7th Cir. 2004).
Second, it appears that Gibson has failed to exhaust his
remedies in state court. A petitioner is required to exhaust
his state-court remedies before a federal court will consider
the merits of his petition. 28 U.S.C. § 2254(b)(1)(A);
Liberman v. Thomas, 505 F.3d 665, 669 (7th Cir.
2007) (citing Picard v. Connor, 404 U.S. 270, 275
(1971)). A petitioner exhausts his claim when he presents it
to the highest state court for a ruling on the merits.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); Arrieta v. Battaglia, 461 F.3d 861, 863 (7th
Cir. 2006). A review of Gibson's petition and Wisconsin
circuit court records, available at
http://wcca.wicourts.gov, fail to reveal that he has sought
relief from the Wisconsin Court of Appeals or the Wisconsin
Supreme Court for the issues he now raises in his petition.
The third, and biggest, problem with Gibson's petition is
that he does not present any constitutional claims. Gibson
pled guilty. [(Docket #1 at 2)]. “Once a plea of guilty
has been entered, non-jurisdictional challenges to the
constitutionality of the conviction are waived and only the
knowing and voluntary nature of the plea may be
attacked.” United States v. Brown, 870 F.2d
1354, 1358 (7th Cir. 1989); see Evans v. Huibregtse,
No. 09-C-493, 2012 WL 3648098, at *1 (E.D. Wis. August 22,
2012). As such, all non-jurisdictional arguments in
Gibson's petition are deemed waived.
With respect to Gibson's jurisdictional argument, he
appears to allege that he was unaware that the trial court
did not address him by his legal name (Larry Darnell Cobb)
until “[he] finally read certain documents [and saw]
the wrong that happen[ed].” (ECF No. 1 at 7.) Notably,
Gibson does not allege that the court lacked personal
jurisdiction because of mistaken identity. A review of
Wisconsin circuit court records reveals that Gibson filed a
request on October 28, 2009 (which was granted) to amend his
judgment of conviction to add his birth name “Larry D.
Cobb” as an “a/k/a.” The court's
failure to address Gibson by his legal name is a mere
technicality that does not deprive the trial court of
jurisdiction. See DeBenedictis v. Wainwright, 674
F.2d 841, 842 (11th Cir. 1982) (“The sufficiency of a
state indictment or information is not properly the subject
of federal habeas corpus relief unless the indictment or
information is so deficient that the convicting court is
deprived of jurisdiction.”); cf. United States v.
Cotton, 535 U.S. 625, 630 (2002) (“[D]efects in an
indictment do not deprive a court of its power to adjudicate
Furthermore, while Gibson sporadically mentions throughout
his petition that he was “15 yrs old”,
“battling mental and emotional problems”,
“lack of education”, and “brain washed to
believe name was Larry D. Gibson” (ECF No. 1 at 6-9),
he does not allege that his guilty plea was unknowing or
involuntary. The court does not construe his petition so
broadly as to construct that argument for him. See Small
v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993)
(“While the courts liberally construe pro se
pleadings as a matter of course, judges are not …
required to construct a party's legal arguments for
him.” (internal citation omitted)).
Id. at 2-5. In accordance with 28 U.S.C. §
636(b)(1)(B) and (C) and Federal Rule of Civil Procedure
72(b)(2), Petitioner was afforded an opportunity to object to
Judge Duffin's recommendation. Petitioner submitted such
an objection on January 18, 2019. (Docket #10).
makes several arguments in his objection, but none warrant
departure from Judge Duffin's carefully reasoned
recommendation. First, he says that Judge Duffin
inappropriately required proof that Petitioner's last
name is Cobb. (Docket #10 at 1-2). Not so; Judge Duffin said
nothing of the sort, and notably, his reasoning for
recommending dismissal remains valid whether Petitioner's
last name is Cobb, Gibson, or any other name imaginable. What
matters is that Petitioner has not alleged anything more than
a technical error in the underlying criminal complaint. Such
an error did not deprive the state court of jurisdiction over
him. DeBenedictis, 674 F.2d at 842.
Petitioner complains that his civil rights have been
consistently violated by Wisconsin officials since he
encountered the juvenile justice system in his youth. (Docket
#10 at 2). The conviction under review has nothing to do with
his juvenile justice experiences. Those periods of
Petitioner's life are not before the Court in this habeas
proceeding, as it concerns only whether his present
confinement was imposed in violation of the Constitution or
then addresses Judge Duffin's three particular
conclusions regarding the unviability of the present
petition. On timeliness, he contends that his petition was
fifteen years late because he received ineffective assistance
of counsel. Id. at 4. He further asserts that at the
time of his conviction, he was diagnosed with mental
disorders including mild intellectual impairment, manic
depression, and depersonalization disorder, and was ...