United States District Court, E.D. Wisconsin
ORDER GRANTING RESPONDENT’S MOTION TO DISMISS
UNAUTHORIZED SUCESSIVE PETITION FOR A WRIT OF HABEAS CORPUS
(DKT. NO. 14) AND DISMISSING CASE
PAMELA PEPPER, United States District Judge.
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.
The Petitioner’s Conviction
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.
The First Federal Habeas Petition
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.
The Petitioner’s State Court Postconviction
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.
The Current Federal Habeas Petition
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.
Respondent’s Motion to Dismiss
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.