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Famous v. Novak

United States District Court, E.D. Wisconsin

October 10, 2019

RONNIE L. FAMOUS, Petitioner,
SUSAN NOVAK, Respondent.


          William C. Griesbach, Chief Judge.

         Petitioner Ronnie L. Famous, who is currently incarcerated at Columbia Correctional Institution, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that his state court conviction and sentence were imposed in violation of the Constitution. In 1998, Petitioner was convicted in Racine County Circuit Court of four counts of first-degree sexual assault of a child and one count of exposing a child to harmful material. He was sentenced to 168 years of confinement. On August 17, 2010, Petitioner filed his petition for federal relief under 28 U.S.C. § 2254. The case was originally assigned to Judge Clevert, who granted Petitioner's motion to stay the case on January 31, 2011, so he could exhaust his state court remedies. Upon Judge Clevert's retirement, the case was reassigned on December 19, 2018. On February 15, 2019, the court lifted the stay, screened the petition and ordered a response. On April 15, 2019, Respondent filed a motion to dismiss the petition as untimely. For the reasons that follow, Respondent's motion to dismiss will be granted and the case will be dismissed.


         The sexual assault charges against Petitioner were based upon the allegations of V.B., who was ten years old at the time of the incident and eleven years old at the time of Petitioner's trial. The victim testified that, in May 1998, she and her family were at a house in which Petitioner and others resided. She stated that when she went in Petitioner's bedroom to try to calm her baby sister, Petitioner entered the room with a television and VCR, barricaded the door with a dresser, showed her a sexually explicit video, and sexually assaulted her. When the victim's younger brothers banged on the bedroom door, Petitioner removed the barricade and the victim went downstairs.


         Respondent has filed a motion to dismiss the petition as untimely. As an initial matter, Petitioner asserts that Respondent has waived the statute of limitations defense by not raising it when the petition and motion for stay and abeyance were originally filed in 2010. But a respondent to a habeas petition is not required to respond to the petition until after the court screens the petition and orders a response. See Rule 4, Rules Governing § 2254 Cases (“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 . . . .”). In this case, the court screened the petition on February 15, 2019, and directed Respondent to either file an appropriate motion seeking dismissal or answer the petition within 60 days. Respondent subsequently filed the instant motion to dismiss on April 15, 2019. In short, the court finds that Respondent has not waived the statute of limitations defense and will consider the merits of the motion.

         The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-year statute of limitations for filing a habeas petition in federal court. A state prisoner seeking federal relief under 28 U.S.C. § 2254 must generally file his petition within one year of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).

         Petitioner was convicted of the charges following a November 1998 jury trial, and he subsequently pursued a direct appeal of his conviction. The Wisconsin Court of Appeals affirmed his convictions in 2001, and the Wisconsin Supreme Court denied Petitioner's petition for review on November 27, 2001. Because Petitioner did not file a certiorari petition in the United States Supreme Court, the one-year statute of limitations period began running on February 25, 2002. As a result, Petitioner had one year, until February 25, 2003, to file a federal habeas petition challenging his conviction and confinement. Petitioner did not file his federal habeas petition until August 17, 2010, well after the one-year limitation period had run. Therefore, Petitioner's federal habeas petition is untimely.

         Petitioner asserts that his petition is not time-barred for three reasons: (1) Petitioner is actually innocent; (2) the institutional law library does not maintain a copy of the AEDPA statutes and he was unaware of the time limitations; and (3) a combination of ineffective assistance of appellate counsel, Petitioner's mental health issues, and prison conditions warrants equitable tolling. The court will address each argument in turn.

         A. Actual Innocence

         Petitioner asserts that he can avoid his procedural default because he is actually innocent. He has provided affidavits created in 2013 from his “alibi” witnesses-Lynette Famous, Petitioner's niece, and Rosie Kelly, an individual that resided in the same house as Petitioner. Lynette Famous and Kelly assert that they would have testified at trial that Petitioner could not have barricaded V.B. into his bedroom with the television because Kelly, V.B., and V.B.'s siblings were watching the television in the living room, but Petitioner's trial counsel did not want them to testify. Petitioner also discusses the October 2005 affidavit from Charles Famous, his father, and the November 2001 affidavit of Candice Streeter, who both allege that the victim told them in 1999 that Famous “did not do anything to her.” Dkt. No. 53-1 at 2.

         “The actual innocence gateway is narrow.” Gladney v. Pollard, 799 F.3d 889, 895 (7th Cir. 2015). A petitioner's procedural default can be excused only if he presents new and reliable “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free from nonharmless constitutional error.” Schlup v. Delo, 513 U.S. 298, 316 (1995). Petitioner must show that “in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” House v. Bell, 547 U.S. 518, 537 (2006) (quoting Schlup, 513 U.S. at 327). “[B]ecause an actual-innocence claim involves evidence the trial jury did not have before it, ” the habeas court must assess “how reasonable jurors would react to the overall, newly supplemented record.” Jones v. Calloway, 842 F.3d 454, 461 (7th Cir. 2016) (internal quotation marks omitted).

         Petitioner's affiants do not have the credibility necessary to open the actual innocence gateway. See McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (directing courts to consider “the timing of the submission and the likely credibility of [a petitioner's] affiants” in assessing the reliability of actual innocence evidence). In evaluating reliability, the identity of the affiant and his or her relationship to the petitioner matters. Indeed, the testimony of new witnesses who had “no evident motive to lie” stands in stark contrast to testimony “from inmates, suspects, or friends or relations of the accused.” House, 547 U.S. at 552; see also Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005) (describing reliable evidence for the purpose of the actual innocence exception as the testimony of “some non-relative” who could provide a corroborated alibi); Jackson v. Ramos, No. 08 CV 7413, 2010 WL 4363204, at *12 (N.D. Ill. Oct. 27, 2010) (“The affidavits of two co-defendants and family members are not the type of ‘trustworthy eyewitness accounts' envisioned by Schlup . . . .”). Rather than being reliable and disinterested witnesses, the affiants are Petitioner's family members, house mate, and friend who have a motivation to lie.

         The district court may also “consider how the timing of the submission . . . bear[s] on the probable reliability of that evidence.” House, 547 U.S. at 538; McQuiggin, 569 U.S. at 399 (noting that “unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing”). In this case, both affidavits of the alibi witnesses were obtained fifteen years after the 1998 trial, and the affidavits of Petitioner's father and Candice Streeter were obtained two years after the victim allegedly told them that Petitioner did not rape her. Petitioner has not explained the lateness of obtaining these affidavits. ...

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