United States District Court, E.D. Wisconsin
CHRISTOPHER C. PEETE, Petitioner,
PAUL KEMPER, Respondent.
William C. Griesbach, Chief Judge
February 13, 2019, Petitioner Christopher Peete, who is
currently incarcerated at Milwaukee Secure Detention
Facility, filed his petition pursuant to 28 U.S.C. §
2254, challenging his state court conviction for which he is
presently under a sentence of confinement. Peete was
convicted of being a felon in possession of a firearm and of
bail jumping. On August 5, 2011, Peete was sentenced to 3.5
years of imprisonment and 3.5 years of supervised release for
being a felon in possession of a firearm to run consecutively
to 2 years of imprisonment and 2 years of supervised release
for bail jumping.
give the case prompt initial consideration pursuant to Rule 4
of the Rules Governing § 2254 Cases, which reads:
If it plainly appears from 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 . . . .
Rules Governing § 2254 Cases. During my initial review
of habeas petitions, I look to see whether the petitioner has
set forth cognizable constitutional or federal law claims and
exhausted available state remedies.
that Peete's petition appears untimely as to his original
conviction. A § 2254 federal habeas petition that
challenges a state court conviction is subject to a one-year
statute of limitations. 28 U.S.C. § 2244(d)(1). Under
§ 2244(d)(1)(A), a habeas petitioner has one year from
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review” to file a petition. The
limitations period is tolled for “the time during which
a properly filed application for State post-conviction or
other collateral review with respect to the pertinent
judgment or claim is pending.” § 2244(d)(2).
conviction became final and the one-year statute of
limitation began to run on September 10, 2015, ninety days
after the Wisconsin Supreme Court denied his petition for
review on June 12, 2015. Jimenez v. Quarterman, 555
U.S. 113, 119 (2009). Consequently, Peete had until September
10, 2016, to file his petition. Although Peete filed a motion
for postconviction relief pursuant to Wis.Stat. 974.06 on
October 25, 2017, the motion has no effect on the limitations
period because the period had already expired before the
motion was filed. See De Jesus v. Acevedo, 567 F.3d
941, 943 (7th Cir. 2009). Thus it appears Peete's
petition, dated February 10, 2019, was filed nearly two and a
half years after the limitations period had expired.
petition, however, Peete asserts a claim of actual innocence
along with other constitutional claims. “A credible
showing of actual innocence may allow a prisoner to pursue
his constitutional claims . . . on the merits notwithstanding
the existence of a procedural bar to relief.”
McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).
“The actual innocence gateway is narrow, ” and a
petitioner's “procedural default can be excused
only if he ‘presents evidence of innocence so strong
that a court cannot have confidence in the outcome of the
trial unless the court is also satisfied that the trial was
free of nonharmless constitutional error.'”
Gladney v. Pollard, 799 F.3d 889, 896 (7th Cir.
2015) (quoting Schlup v. Delo, 513 U.S. 298, 316
(1995)). A petitioner must show that “in light of new
evidence, ‘it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a
reasonable doubt.'” House v. Bell, 547
U.S. 518, 537 (2006) (quoting Schlup, 513 U.S. at
327). “[N]ew evidence can take the form of any new
reliable evidence-whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical
physical evidence.” Gladney, 799 F.3d at 896
(internal quotation marks and citation omitted). Although
Peete asserts that there is no evidence that connects him to
the firearm, he does not identify any new evidence that calls
into question the validity of his conviction. As a result,
absent the identification of new evidence that previously has
not been considered, Peete's claim of actual innocence
does not appear to excuse his procedural default of untimely
filing his petition. Before dismissing a habeas application
for untimeliness, however, a court must grant the petitioner
fair notice and afford him an opportunity to present his
position. Day v. McDonough, 547 U.S. 198, 210
note that in ground 12 of his petition, Peete alleges that he
is back in prison on revocation of his supervision because
his probation officer retaliated against him for complaining
about her and arguing with her. To the extent Peete seeks to
challenge the revocation of his extended supervision, as
opposed to his original conviction, his petition would appear
timely and he will be allowed to proceed on that claim,
assuming he has exhausted his state court remedies. No.
answer will be required until the court determines whether
Peete's challenge to his original conviction is timely.
IT IS ORDERED that within 30 days of the date of
this order Peete shall show cause, if any, why his
application for relief under § 2254 is not time-barred.
This includes identifying any new evidence that previously
has not been considered in support of his claim of actual
innocence and explaining in detail how it supports his claim.
If Peete fails to respond within 30 days, his claims relating
to his original conviction will be dismissed with prejudice
and he will be allowed to proceed only on his challenge to
IS FURTHER ORDERED that Respondent shall have 21
days following the filing of Peete's brief within which
to file a response.
IS FURTHER ORDERED that the plaintiff shall submit
all correspondence and legal material to:
Honorable William C. Griesbach c/o Office of the Clerk United
States District Court Eastern District of Wisconsin 125 S.
Jefferson Street, Suite 102 Green Bay, WI 54301
DO NOT MAIL ANYTHING DIRECTLY TO THE COURT'S CHAMBERS. It
will only ...