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Earls v. Dittmann

United States District Court, E.D. Wisconsin

March 7, 2019

FAIRLY W. EARLS, Petitioner,
v.
MICHAEL A. DITTMAN, Respondent.

          ORDER DENYING MOTIONS FOR RULE 60(b) RELIEF (DKT. NOS. 20, 22), DENYING AMENDED REQUEST FOR A CERTIFICATE OF APPEALABILITY (DKT. NO. 23), GRANTING PETITIONER'S MOTION TO STRIKE (DKT. NO. 26), STRIKING DOCUMENT AT DKT. NO. 24, AND DENYING AS MOOT PETITIONER'S SECOND MOTION TO STRIKE (DKT. NO. 27)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         I. BACKGROUND

         On May 27, 2015, the petitioner filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his 2012 conviction in Fond Du Lac County Circuit Court. Dkt. No. 1. On July 10, 2015, the court screened the petition under Rule 4 of the Rules Governing §2254 Proceedings. Dkt. No. 6. The court dismissed the petition, finding that the petitioner could not demonstrate that his conviction was constitutionally infirm. Id. The court declined to issue a certificate of appealability. Id. The petitioner appealed. Dkt. No. 8. On June 3, 2016, the Seventh Circuit Court of Appeals denied the petitioner's request for a certificate of appealability, finding that he had not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. §2253(c)(2). Dkt. No. 19.

         Approximately twenty months later, the petitioner filed a document titled “Federal Rule of Civil Procedure, Rule 60(b) Motion.” Dkt. No. 20. He wrote that he sought relief from this court's July 2015 order dismissing his petition “because of a significant change in the law.” Id. at 2. Specifically, he argued that the Seventh Circuit's decision in Boyd v. Boughton, 798 F.3d 490 (7th Cir. 2015) changed the law regarding his double jeopardy claim. Id. at 6. The defendant asserted that

[b]ecause [the petitioner] relies on a New Rule of Law decided by the Seventh Circuit Court and made retroactive by the United States Supreme Court as a substantive rule, [the petitioner] over comes the bar of section §2244(b)(3) as a successive habeas petition and therefore can be ruled upon by the District Court without any precertification by the Court of Appeal pursuant to 28 U.S.C. §2244(b)(2)(A).

Id. at 12.

         Four months later, the petitioner filed a document entitled “Petitioner's Federal Rule of Civil Procedure, Rule 60(b) Motion.” Dkt. No. 22. This motion asked the court to grant “a Certificate of Appealability so the petitioner may present to the Court of Appeals his claims which seek relief substantively addressing Federal grounds for setting aside the petitioners State conviction.” Id. at 5. Along with this motion, the petitioner filed an “Amended Motion for Certificate Of Appealability With Compelling Evidence of Innocense [sic] and a Federal Rule Civil Procedure Rule 15(c)(1)(A) & (B) Pleading, Incorporated with Fed.R.Civ.P. 60(b) Motion.” Dkt. No. 23. The clerk's office docketed this document as an “amended request for certificate of appealability, ” dkt. no. 23, then docketed the same pleading a second time as an “Amended Motion for COA construed as a NOTICE OF APPEAL as to 18 Order on Motion for Leave to Appeal Without Prepayment of the Filing Fee, ” dkt. no. 24. In response, the petitioner filed a “Motion Pursuant to Federal Rules of Civil Procedure, Rule 60(a) Clerical Mistake, ” dkt. no. 26, and a “Motion Pursuant to Federal Rules of Civil Procedure, Rule 60(a) Corrections and Strike, ” asking the court to strike the document at dkt. no. 24, dkt. no. 27. The petitioner also a “Motion for a Amended Pleadnig Pursuant to FRCP 15(c)(1)(A) & (B) and FRCP 60(b) Amended Certificate of Appealability with Compelling Evidence of Innocense [sic].” Dkt. No. 28.

         II. DISCUSSION

         Under Rule 12 of the Rules Governing Section 2254 Cases, the court may apply the Federal Rules of Civil Procedure in habeas cases “to the extent that they are not inconsistent with any statutory provisions.” The petitioner has brought motions under Fed.R.Civ.P. 60(a), which allows a court to correct clerical mistakes and mistakes arising from oversights and omissions in judgments or orders, and Fed.R.Civ.P. 60(b), which allows a court to relieve a party from a final judgment, order, or proceeding for reasons including mistake, newly discovered evidence, fraud or “any other reason that justifies relief.” Fed.R.Civ.P. 60(b). He also has cited Fed.R.Civ.P. 15(c)(1), which provides that an amendment to a pleading “relates back” to the date of the original pleading when the law provides that the applicable statute of limitations allows relation back, or the amendment asserts a claim or defense that arose out of the conduct, transaction or occurrence set out in the original pleading. The court finds that these rules apply in this habeas case, because they are not inconsistent with any statutory provisions.

         A. Motions for Rule 60(b) Relief (Dkt. Nos. 20 and 22)

         The petitioner filed his habeas petition on May 27, 2015. Dkt. No. 1. The court dismissed the petition on July 10, 2015. Dkt. No. 6. A month later, on August 14, 2015, the Seventh Circuit Court of Appeals decided Boyd, 798 F.3d 490. The petitioner asserts in his first Rule 60(b) motion that in Boyd, the Seventh Circuit announced a new, substantive rule of law. Dkt. No. 20 at 4. He asserts that Boyd requires a district court to perform a two-step analysis for double jeopardy claims of multiple punishment in a single prosecution. Id. at 7. The petitioner says that “according to the United States Supreme Court the New Law applies Retroactively” to the double jeopardy claim he raised in his habeas petition. Id. at 3. He concludes that because this court did not perform the two-step analysis required by Boyd, and because the requirement to perform that analysis applies retroactively to his case, the court must reconsider its order dismissing his petition. Id. at 4.

         The court dismissed the petition in July 2015, and the Seventh Circuit denied the petitioner's request for a certificate of appealability on April 26, 2016.[1] Dkt. No. 19 at 3. The mandate issued on June 3, 2016. Id. at 2. The petitioner says that he filed for rehearing, and for rehearing en banc, and that the Seventh Circuit denied that request on May 28, 2016. Dkt. No. 22 at 3. He asserts that on August 9, 2016, he filed a petition for writ of certiorari with the United States Supreme Court, and he says he received a letter from that Court on June 23, 2017, informing him that his petition had been denied. Id. On the date he filed his first motion for Rule 60(b) relief-February 12, 2018-this case had been officially over for more than six months.

         The court will deny the petitioner's motions for Rule 60(b) relief for a few reasons. First, Rule 60(b) is not the correct procedural mechanism for a habeas petitioner to use to argue that a new, retroactive rule of constitutional law entitles him to relief. The petitioner's argument is really a second habeas petition (because his first petition is no longer pending). Section 2244(a) of the habeas statute says that a judge is not required to consider a habeas petition “if it appears that the legality of [the petitioner's] detention has been determined by a judge or court of the United States on a prior application for a write of habeas corpus . . . .” In other words, a prisoner gets to file one, and only one, petition for habeas relief. The law requires courts to dismiss claims “presented in a second or successive habeas corpus application . . . that [were] presented in a prior application . . . .” 28 U.S.C. §2244(b)(1). A court must dismiss a claim in a second or successive habeas petition that was not presented in a prior application “unless . . . the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable . . . .” §2244(b)(2)(A).

         The petitioner appears to be arguing exactly that-that he could not have argued the two-step Boyd analysis in his original petition, because that case hadn't been decided yet. He argues that Boyd has created a new rule of constitutional law, and that that rule is retroactive to cases on collateral review, and that the Boyd argument was unavailable to him in his original petition. The ...


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