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Wilson v. Dittman

United States District Court, E.D. Wisconsin

September 25, 2019

DAVID MARTELL WILSON, Petitioner,
v.
MICHAEL DITTMAN, Respondent.

          ORDER GRANTING RESPONDENT’S MOTION TO DISMISS UNAUTHORIZED SUCESSIVE PETITION FOR A WRIT OF HABEAS CORPUS (DKT. NO. 14) AND DISMISSING CASE

          HON. PAMELA PEPPER, United States District Judge.

         On March 28, 2017, the petitioner, an inmate at the Columbia Correctional Institution who is representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his April 22, 1996 conviction for felony murder and possession of a firearm by a felon. Dkt. No. 1 at 2. This court screened the complaint on July 13, 2018, dkt. no. 11, and two months later, the respondent filed a motion to dismiss for lack of jurisdiction, dkt. no. 14. The petitioner did not file a brief opposing the motion to dismiss. Because the petition is a second and successive petition that the petitioner filed without obtaining approval from the federal court of appeals, the court will grant the respondent’s motion to dismiss.

         I. Background

         A. The Petitioner’s Conviction

         In February 1996, a jury convicted the petitioner of felony murder and felon in possession of a firearm. Dkt. No. 1-3 at 1. The Milwaukee County Circuit Court sentenced him to seventy years in prison on Count One and eight years on Count Two, to run consecutively for an aggregate sentence of seventy-eight years. Dkt. No. 1 at 2; Dkt. No. 1-3 at 1. The petitioner filed a direct appeal, and the Wisconsin Court of Appeals affirmed the conviction on August II, 1998. Dkt. No. 1 at 3. The Wisconsin Supreme Court denied his petition for review on October 14, 1998. Id.

         B. The First Federal Habeas Petition

         On October 12, 1999, the petitioner filed a petition for a writ of habeas corpus in this court challenging his 1996 conviction. Dkt. No. 15-1; see also Wilson v. Bertrand, Case No. 99-cv-1203-TJC (E.D. Wis.), at dkt. no. 1. Judge Thomas J. Curran denied the petition on March 31, 2003. Dkt. No. 15-1. His decision recounted the petitioner’s three grounds for relief: (1) that the State had violated his due process rights when it failed to properly disclose “material discovery;” (2) that the trial court had violated his due process rights when it denied a continuance and a postconviction motion; and (3) that the prosecutor had engaged in prosecutorial misconduct. Dkt. No. 15-1 at 11.

         C. The Petitioner’s State Court Postconviction Filing

         In May 2014, the petitioner filed a petition for postconviction relief in Milwaukee County Circuit Court, citing “newly discovered evidence” that his conviction should be reversed. Dkt. No. 1 at 4. The circuit court denied that motion. Dkt. No. 1-3 at 6. The Wisconsin Court of Appeals affirmed the circuit court on December 1, 2015. Id. at 7. The petitioner filed a petition for review with the Wisconsin Supreme Court, which that court denied on April 6, 2016. Id. at 22.

         D. The Current Federal Habeas Petition

         The petitioner timely filed the current petition in March of 2017. Dkt. No. 1 at 1. It alleged eight grounds for relief. Dkt. No. 1. When this court screened the petition in July of 2018, the court framed the petitioner’s claims as: (1) newly discovered evidence of actual innocence, dkt. no. 11 at 7; (2) two due process claims of prosecutorial misconduct, id. at 7-8; (3) a due process claim of the prosecution’s failure to disclose inducement to witnesses, id. at 8; (4) two Sixth Amendment claims for ineffective assistance of post-conviction counsel, id. at 8; and (5) a due process claim that the sentencing court sentenced the petitioner based on inaccurate information, id. The court remarked that Ground Eight of the petitioner’s petition-that the Wisconsin Court of Appeals made a decision contrary to and an unreasonable application of constitutional and federal law-was “just a statement of the applicable law.” Id. at 7. The court did not allow the petitioner to proceed on that claim and ordered the respondent to respond to the remaining grounds.

         E. Respondent’s Motion to Dismiss

         On September 11, 2018, the respondent filed this motion to dismiss. Dkt. No. 14. He pointed out that the petitioner previously had filed a federal habeas case challenging the 1996 conviction. Dkt. No. 15 at 2. The respondent argued that because the petitioner had a previously-decided habeas petition, Rule 9 of the Rules Governing Section 2254 Cases and 28 U.S.C. §2244(b)(3)(A) required the petitioner to obtain permission from a federal court of appeals before filing a second or successive petition. Dkt. No. 15 at 2-4. The respondent asserted that the petitioner had not demonstrated that he obtained that permission, which meant that this court lacked jurisdiction. Id. at 4.

         II. ...


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