United States District Court, E.D. Wisconsin
William C. Griesbach, United States District Judge.
Raymond Collins, who is currently incarcerated at Green Bay
Correctional Institution, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 and a writ of coram
nobis. Approximately forty years ago, Collins was convicted
in Milwaukee County Circuit Court of two counts of
first-degree murder, one count of attempted murder, six
counts of armed robbery, and two counts of reckless
endangerment regardless of life. He was sentenced to life
filed with his petition an application for leave to proceed
in forma pauperis. He also, however, has submitted the $5
filing fee. Because he paid the filing fee, his request to
proceed in forma pauperis will be denied as moot.
give the case prompt initial consideration pursuant to Rule 4
of the Rules Governing § 2254 Cases, which reads:
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 . . . .
Rule 4, Rules Governing § 2254 Cases. During my initial
review of habeas petitions, I look to see whether the
petitioner has set forth cognizable constitutional or federal
law claims and exhausted available state court remedies.
initial matter, Collins cannot proceed on his writ of coram
nobis. “The writ of coram nobis is a means for a
collateral attack on a criminal conviction alleging errors of
law or fact that affect the fundamental character of the
conviction, including inadequate counsel. It is similar to a
habeas corpus petition and affords the same type of relief, .
. . but it is available only when a defendant is no longer in
custody and thus can no longer take advantage of habeas
corpus relief.” United States v. Delhorno, 915
F.3d 449, 452 (7th Cir. 2019). Because Collins is in custody,
he cannot employ a writ of coram nobis to challenge his
has also filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Collins' petition is governed
by the Antiterrorism and Effective Death Penalty Act (AEDPA),
28 U.S.C. § 2254. Under AEDPA, Collins was subject to a
one-year period of limitations in which to file his petition.
Because he was convicted before AEDPA's enactment, his
period of limitations began to run on AEDPA's effective
date of April 24, 1996. Gendron v. United States,
154 F.3d 672, 675 (7th Cir. 1998). Collins' December 6,
2019 petition was filed 23 years after the effective date of
AEDPA. The petition is therefore untimely.
the one-year period for filing habeas petitions can be tolled
in two instances, neither applies here. First, the
limitations period is tolled for the “time during which
a properly filed application for State post-conviction or
other collateral review with respect to the pertinent
judgment or claim is pending.” 28 U.S.C. §
2244(d)(2). In this case Collins did not appeal from the
judgment of conviction, and while Collins filed an
application for state post-conviction relief on July 28,
2019, that motion was filed long after the one-year statute
of limitations had expired. As such, tolling pursuant to
§ 2244(d)(2) is not applicable. A court may also
equitably toll the limitations period. “[E]quitable
tolling is granted sparingly only when extraordinary
circumstances far beyond the litigant's control prevented
timely filing.” Simms v. Acevedo, 595 F.3d
774, 781 (7th Cir. 2010) (citation omitted). To establish
“extraordinary circumstances, ” a petitioner must
show “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010)
(internal quotation marks and citation omitted). The court
does not find that Collins has been diligently pursuing his
rights. The circumstances of this case do not allow him to
take advantage of statutory or equitable tolling.
Accordingly, Collins' petition is time-barred and could
be dismissed on this basis.
Collins' petition was timely, it must be dismissed
because Collins has not asserted any grounds for relief in
his petition. As a result, the court cannot grant Collins any
relief. His petition must therefore be dismissed.
IS THEREFORE ORDERED that Collins' motion for
leave to proceed without prepayment of the filing fee (Dkt.
No. 3) is DENIED as moot.
IS FURTHER ORDERED that this petition is summarily
dismissed pursuant to Rule 4 of the Rules Governing §
2254 Cases. The Clerk is directed to enter judgment
dismissing the case.
IS FURTHER ORDERED that a certificate of
appealability is DENIED. I do not believe
that reasonable jurists would believe that Collins has made a
substantial showing of the denial of a constitutional right.
is advised that the judgment entered by the Clerk is final. A
dissatisfied party may appeal this court's decision to
the Court of Appeals for the Seventh Circuit by filing in
this court a notice of appeal within 30 days of the entry of
judgment. See Fed. R. App. P. 3, 4. In the event
Collins decides to ...