United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
petitioner Paul Adams, a state inmate confined at Chippewa
Valley Correctional Treatment Facility, filed a petition for
writ of habeas corpus under 28 U.S.C. § 2254,
challenging his 2009 OWI conviction because: (1) he did not
make a knowing and intelligent plea; (2) the state failed to
disclose potentially exculpatory surveillance footage; (3)
his trial-court counsel was ineffective; and (4) actual
innocence. I denied the petition and dismissed the case after
concluding that Adams was seeking to challenge a conviction
for which he was no longer in custody for purposes of §
2254, and because it is untimely.
now asks me to reconsider my order, Dkt. 13, which I will
construe as a motion to alter or amend the judgment under
Federal Rule of Civil Procedure 59(e). He also filed a notice
of appeal, Dkt. 14, and a motion for leave to proceed in
forma pauperis on appeal, Dkt. 21. Normally, the
filing of a notice of appeal “divests the district
court of its control over those aspects of the case involved
in the appeal.” Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982). However, when a
party files a notice of appeal while a Rule 59(e) motion
remains pending, the notice becomes effective only after the
court decides the Rule 59(e) motion. See Fed. R.
App. P. 4(a)(4)(B)(i). In this opinion, I will address
Adams's motion to reconsider my prior decision along with
his motion for leave to proceed in forma pauperis on
Motion for reconsideration
prevail on a motion for reconsideration under Rule 59, a
petitioner must present newly discovered material evidence or
establish a manifest error of law or fact. Oto v. Metro.
Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). Here,
Adams says that I erred in deeming him not “in
custody” for purposes of federal habeas eligibility.
The Supreme Court has held that a petitioner is not in
custody for purposes of federal habeas corpus review once the
challenged sentence has fully expired. Maleng v.
Cook, 490 U.S. 488, 492 (1989). In my prior order, I
wrote that because Adams's five-year sentence on the 2009
OWI conviction has presumably expired, Adams cannot challenge
that conviction through a habeas petition now.
response, Adams correctly notes that “a prisoner may
challenge a sentence that has already expired if he is
currently incarcerated on a term that was imposed
consecutively to the expired term.” Miller v.
Holder, 190 Fed.Appx. 487, 488 (7th Cir. 2006) (citing
Garlotte v. Fordice, 515 U.S. 39, 40 (1995);
DeFoy v. McCullough, 393 F.3d 439, 442 (3d Cir.
2005); Foster v. Booher, 296 F.3d 947, 950 (10th
Cir. 2002)). Adams says that he is currently serving the last
of three consecutive sentences, and is still on supervision
regarding his 2009 OWI conviction. So Adams is still in
custody on the 2009 conviction, which means that my opinion
was incorrect on that point.
Adams's motion does not adequately address the other
reason I dismissed his petition-untimeliness. As I explained
in my prior order, a petitioner generally has one year from
the date the challenged conviction becomes final to file a
habeas petition under § 2254. 28 U.S.C. § 2244(d).
Adams was convicted in 2009, and the one-year limitations
period began to run on April 20, 2009, the date the judgment
of conviction became final. See State v. Nickel,
2010 WI.App. 161, ¶ 5, 330 Wis.2d 750, 794 N.W.2d 765.
Adams did not file his habeas petition until November 16,
2018, almost nine years too late.
one-year deadline may be tolled under the doctrine of
equitable tolling if a petitioner can show that (1) he has
been pursuing his rights diligently, and (2) some
extraordinary circumstance stood in his way and prevented
timely filing. Holland v. Florida, 560 U.S. 631, 649
(2010); Mayberry v. Dittmann, 904 F.3d 525, 529-30
(7th Cir. 2018). Equitable tolling is rare and
“reserved for extraordinary circumstances far beyond
the litigant's control that prevented timely
filing.” Carpenter v. Douma, 840 F.3d 867, 870
(7th Cir. 2016); Socha v. Boughton, 763 F.3d 674,
684 (7th Cir. 2014).
in Adams's petition, his motion for reconsideration, or
the attached materials suggests that Adams pursued his rights
diligently yet was thwarted by some “extraordinary
circumstance” that prevented him from complying with
the limitations period. Adams says that he has struggled with
mental health issues for much of his life, and that he is
currently undergoing cancer treatment. Dkt. 13, at 2, 4. But
these facts do not explain Adams's nine-year delay, nor
are they sufficient to invoke the extraordinary remedy of
also says that he was under the impression that that his
“appellate rights” would be held in abeyance
until after he completed rehabilitation treatment through an
earned release program (ERP). Id. at 3. He attaches
three ERP memos of agreement that he signed, which indicate
that he participated in three ERP treatment programs in 2009
and 2011. See Dkt. 13-5-7. Those memos state that
participants in the ERP program may “not actively
pursue any appeals on current cases, ” and “that
other cases will need to be held in abeyance” during
enrollment in ERP. Id. at 2. But the memos did not
indicate that Adams's “appellate rights”
would be held in abeyance-just that any cases he had pending
at the time would need to be held in abeyance while he was
completing the program. Even if the memos did somehow toll
Adams's appeal window, the ERP programs lasted
approximately 180 days each. Adams's misapprehension of
the ERP memos does not explain or excuse his nine-year delay.
petitioners may also avoid application of the one-year time
limit by arguing or an equitable exception to §
2244(d)(1) based on a credible claim of actual innocence.
See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).
But to qualify for this exception, a petitioner must persuade
the district court “that, in light of the new evidence,
no juror, acting reasonably, would have voted to find him
guilty beyond a reasonable doubt.” Schlup v.
Delo, 513 U.S 298, 329 (1995). To be “new, ”
the evidence does not need to be “newly discovered,
” but it must not have been presented at trial.
Gladney v. Pollard, 799 F.3d 889, 898 (7th Cir.
says that he is actually innocent of the OWI conviction and
that video surveillance footage from the Pick ‘n Save
where he was arrested that the state failed to preserve would
have exonerated him. But according to court documents, the
surveillance footage allegedly showed Adams parking and
exiting his car and entering the store. Dkt. 1-2, at 2. He
was subsequently arrested with his keys in his hand and a
blood alcohol content of .256. Id. Adams provides no
information about why he thinks this characterization of the
footage is inaccurate, what he believes the footage would
actually show, and why it would be exculpatory. This is not
“evidence of innocence so strong” that, upon
viewing it, “no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.” See
House v. Bell, 547 U.S. 518, 536- 37 (2006). So Adams
cannot rely on the actual innocence exception to excuse his
Rule 11 of the Rules Governing Section 2254 Cases, the court
must issue or deny a certificate of appealability when
entering a final order adverse to petitioner. A certificate
of appealability will not issue unless the petitioner makes
“a substantial showing of the denial of a
constitutional right, ” 28 U.S.C. § 2253(c)(2),
which requires a petitioner to demonstrate “that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). Under the controlling standard, this requires a
petitioner to show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were ‘adequate to deserve
encouragement to proceed further.'” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003) (internal
quotations and citations omitted). If a district court
dismissed a habeas petition based on procedural grounds
without reaching the underlying constitutional claims, then a
certificate of appealability “should issue when the
prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.” Id.
conclude that no reasonable jurist would disagree that
Adams's petition is untimely and that he has failed to
show that equitable tolling or an actual innocence exception
should apply. ...