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Winston v. Hepp

United States District Court, E.D. Wisconsin

September 25, 2019

SHOMAS T. WINSTON, Petitioner,
v.
RANDALL R. HEPP, Respondent.

          ORDER DENYING WITHOUT PREJUDICE PETITIONER’S MOTION FOR EVIDENTIARY HEARING (DKT. NO. 9), DENYING PETITIONER’S SECOND MOTION FOR ACCESS TO RELEASE ACCOUNT (DKT. NO. 10), DENYING WITHOUT PREJUDICE PETITIONER’S MOTION FOR DISCOVERY (DKT. NO. 13), DENYING WITHOUT PREJUDICE PETITIONER’S MOTION TO APPOINT COUNSEL (DKT. NO. 14) AND DENYING PETITIONER’S MOTION FOR RELEASE PENDING HABEAS CORPUS RELIEF (DKT. NO. 20)

          HON PAMELA PEPPER, United States District Judge.

         Shomas T. Winston, representing himself, filed a petition for writ of habeas corpus challenging his September 8, 2004 convictions in Milwaukee County Circuit Court of first-degree intentional homicide and armed robbery. Dkt. No. 1. He simultaneously filed motions for leave to proceed without prepayment of the filing fee and for an order allowing him access to his release account. Dkt. Nos. 3, 5. Magistrate Judge Nancy Joseph granted his motion to proceed without prepayment of the filing fee, denied as moot his motion to authorize payment from his release account, and ordered the respondent to answer or otherwise respond to the petition. Dkt. No. 7. Before the respondent responded, the petitioner filed a flurry of motions: (a) for an evidentiary hearing, dkt. no. 9; (b) a second motion to access his release account, dkt. no. 10; (c) for discovery, dkt. no. 13; and (d) to appoint counsel, dkt. no. 14. On March 13, 2019, the respondent filed a motion to dismiss, dkt. no. 18, and the petitioner followed with a motion for release while his petition is pending, dkt. no. 20. The petitioner’s motions are premature and he has not established a basis for his release at this time. This order denies the petitioner’s pending motions; the court will issue a separate order addressing the respondent’s motion to dismiss.

         I. Background

         On July 23, 2004, a jury found the petitioner guilty of first-degree intentional homicide and armed robbery. State v. Winston, Milwaukee County Circuit Court, Case No. 03CF006686 (available electronically at https://wcca.wicourts.gov). The Milwaukee County Circuit Court judge sentenced the petitioner to life in prison on September 7, 2004. Id. The clerk entered judgment the next day. Id.

         With the assistance of appointed counsel, petitioner raised ineffective assistance of counsel claims, challenged the sufficiency of the sentence and objected to the sentence in a postconviction motion and a direct appeal. State v. Winston, Wisconsin Court of Appeals, Case No. 2005AP000923 (available electronically at https://wscca.wicourts.gov). The circuit court denied postconviction relief. Id. On June 27, 2006, the Wisconsin Court of Appeals affirmed the judgment and order denying relief. Id. The petitioner did not file a petition for review with the Wisconsin Supreme Court. Dkt. No. 1 at 2-3.

         In February of 2008, the petitioner filed a petition for writ of habeas corpus in the Wisconsin Court of Appeals. Dkt. No. 1 at 3. The court denied the petition ex parte on March 5, 2008. Id. The Wisconsin Supreme Court denied review on August 18, 2008. State v. Winston, Wisconsin Court of Appeals, Case No. 2008AP000332 (available electronically at https://wscca.wicourts.gov).

         On January 27, 2009, the petitioner filed a motion for new trial under Wis.Stat. §974.06, challenging the effectiveness of his post-conviction counsel. Dkt. No. 2-1 at 7. The trial court denied the motion on March 23, 2009, and the Wisconsin Court of Appeals later affirmed the order. Id. at 12, 13. The Wisconsin Supreme Court denied review on September 27, 2011. State v. Winston, Wisconsin Court of Appeals, Case No. 2009AP000887 (available electronically at https://wscca.wicourts.gov).

         The petitioner filed a second motion for new trial on September 7, 2012. Dkt. No. 1 at 4. After the circuit court denied his motion, he appealed but later moved to voluntarily dismiss the appeal on December 20, 2013. State v. Winston, Milwaukee County Circuit Court, Case No. 03CF006686 (available electronically at https://wcca.wicourts.gov). The state court docket shows that the petitioner voluntarily dismissed his appeal so the Wisconsin Innocence Project could file a DNA motion. Id. (1-31-2014 docket entry). The state court record reflects that the defendant and the government entered a stipulation for DNA testing at the defendant’s expense on March 24, 2014. Id.

         On November 23, 2016, the petitioner filed a third motion for new trial.[1]Dkt. No. 2-1 at 1. The trial court denied the motion on November 30, 2016, and the Wisconsin Court of Appeals summarily affirmed the decision on May 31, 2018. Id. at 2-3. The petitioner’s motion argued that his discovery of an old police report of an armed robbery and murder committed by someone named “Wallstreet” outside a check cashing store two years prior to the petitioner’s offense date constituted newly discovered evidence warranting a new trial. The Wisconsin Court of Appeals rejected the motion as meritless and as procedurally barred. Dkt. No. 2-1 at 4-5. The Wisconsin Supreme Court denied his petition for review on November 13, 2018. Dkt. No. 2-1 at 6.

         The petitioner filed this petition on December 7, 2018, alleging actual innocence, denial of his constitutional right to a fair and impartial jury, and denial of his constitutional right to effective assistance of counsel. Dkt. No. 1 at 5-9.

         II. Motion for Evidentiary Hearing (Dkt. No. 9)

         A month and a half before the deadline for the respondent to answer the petition, the petitioner filed a motion asking the court to schedule an evidentiary hearing under 28 U.S.C. §2254(e) because his state trial counsel had not fully developed the record in the state court on the issue of seating a jury. Dkt. No. 9 at 1-2. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts says that, if a court does not dismiss a habeas petition, it must review all the materials submitted and determine whether it believes there is a need for an evidentiary hearing. In cases where a petitioner did not develop fully the factual basis of his claim in state court, the federal court “shall not hold an evidentiary hearing on the claim” unless (a) the claim relies on a new rule of constitutional law that wasn’t available at the time of the state court proceedings, or on facts that could not previously have been discovered even through diligent effort, and (b) the facts supporting the claim would show by clear and convincing evidence that no reasonable factfinder would have found the petitioner guilty. 28 U.S.C. §2254(e)(2). This is a heavy burden to meet.

         The court will deny this motion without prejudice as premature. The respondent has filed a motion to dismiss the petition as untimely. Before the court addresses the merits of the petition and the need for an evidentiary hearing, it needs to address the respondent’s claim that the petition was not timely filed. If the court concludes that the petition was timely filed, it will give the parties the opportunity to brief the petition. Once the petition is fully briefed, the court will consider the pleadings and other documents and will decide whether an evidentiary hearing is warranted under the rules and the statute.

         III. Motion for Access to Release ...


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