United States District Court, E.D. Wisconsin
DANIEL M. WILSON, Petitioner,
GARY BOUGHTON, Respondent.
WILLIAM C. GRIESBACH, CHIEF JUDGE
16, 2019, Petitioner Daniel M. Wilson, who is currently
incarcerated at Wisconsin Secure Program Facility (WSPF),
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. Wilson was convicted in Milwaukee County
Circuit Court, No. 2014CF2319, of repeated sexual assault of
the same child (at least three violations of first degree
sexual assault) in violation of Wisconsin Statute §
948.025(1)(b), and was sentenced to 50 years of imprisonment,
comprising 37 years of initial confinement and 13 years of
extended supervision. Dkt. No. 1 at 2. Wilson's petition
challenges this conviction. Wilson filed with his petition an
application for leave to proceed without prepayment of the
filing fee (in forma pauperis). He also, however,
has submitted the $5 filing fee. Because he paid the filing
fee, his request to proceed in forma pauperis will
be denied as moot.
has also filed a motion to correct his petition. Wilson seeks
to name Milwaukee County Circuit Court as the respondent in
this action, as that court is where he was convicted. But
Wilson was correct to name WSPF Warden Gary Boughton, the
State agent holding him, as the respondent in this habeas
action. Given that Wilson's petition makes clear that he
is challenging his conviction in Milwaukee County Circuit
Court, No. 2014CF2319, and he named the proper respondent,
his motion to correct will be denied as moot.
respect to Wilson's petition, I must give the petition
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.
petition raises two grounds for relief. First, he claims that
there was insufficient evidence to prove that he committed at
least three or more acts of first-degree sexual assault
involving the same child between January 1, 2013 and May 5,
2014, the time frame specified in the information. Dkt. No.
1-1 at 1. Second, he claims that his trial counsel was
ineffective for failure to object to the admission of (1) the
child victim's medical records indicating that she, like
Wilson, had type 1 herpes, and (2) various testimony of the
State's experts as to the general nature of child sexual
abuse. Id. at 7. These claims are cognizable for
purposes of habeas review. See Crawford v.
Washington, 541 U.S. 36, 42 (2004); Strickland v.
Washington, 466 U.S. 668, 684-85 (1984); Jackson v.
Virginia, 443 U.S. 307, 309 (1979). It appears that
Wilson has exhausted his state court remedies and that his
petition is timely.
the court cannot determine from the face of the petition and
the record as it stands whether Wilson is entitled to habeas
relief, Respondent will be directed to file a response.
Although it appears, upon initial review, that Wilson has
exhausted his remedies and has timely filed a petition under
§ 2254, Respondent remains free to raise challenges as
to exhaustion and timeliness.
IS THEREFORE ORDERED that, within 60 days of the
date of this order, Respondent shall either file an
appropriate motion seeking dismissal or answer the petition,
complying with Rule 5 of the Rules Governing § 2254
Cases, and showing cause, if any, why the writ should not
IS FURTHER ORDERED that Wilson shall have 30 days
following the filing of Respondent's answer within which
to file a reply brief. Once a reply brief is filed, the court
will determine whether further briefing is required.
IS FURTHER ORDERED that, if Respondent files a
dispositive motion in lieu of an answer, Wilson shall have 30
days following the filing of Respondent's dispositive
motion and supporting initial brief within which to file a
brief in opposition and Respondent shall have 15 days
following the filing of Wilson's opposition brief within
which to file a reply brief, if any.
to Civil L.R. 7(f), the following page limitations apply:
briefs in support of or in opposition to the habeas petition
or a dispositive motion filed by Respondent must not exceed
thirty pages and reply briefs must not exceed fifteen pages,
not counting any caption, cover page, table of contents,
table of authorities, and/or signature block.
IS FURTHER ORDERED that Wilson's request for
leave to proceed in forma pauperis (Dkt. No. 2) and
motion to correct his petition (Dkt. No. 6) are
DENIED as moot.
IS FURTHER ORDERED that, pursuant to the Prisoner
E-Filing Program, Wilson shall submit all correspondence and
case filings to institution staff, who will scan and e-mail
documents to the Court. The Prisoner E-Filing Program is in
effect at Columbia Correctional Institution, Dodge
Correctional Institution, Green Bay Correctional Institution,
Oshkosh Correctional Institution, Waupun Correctional
Institution, and Wisconsin Secure Program Facility. If Wilson
is no ...