United States District Court, E.D. Wisconsin
SHOMAS T. WINSTON, Petitioner,
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.
PAMELA PEPPER, United States District Judge.
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
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.
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.
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
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).
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.
November 23, 2016, the petitioner filed a third motion for
new trial.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.
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.
Motion for Evidentiary Hearing (Dkt. No. 9)
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.
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.
Motion for Access to Release ...