Hammersley v. McCash

Filing 5

ORDER granting 2 Motion for Leave to Proceed in forma pauperis, denying 3 Motion for Reconsideration, and dismissing 1 Petition signed by Chief Judge William C Griesbach on 9/23/2014. A certificate of appealability will not issue. The Clerk is directed to enter judgment.(cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ROBERT EDGAR HAMMERSLEY,
Petitioner,
v.

Case No. 14-C-1147

MICKI McCAFH,
Respondent.

SCREENING ORDER

On September 17, 2014, Robert Edgar Hammersley filed this petition pursuant to 28 U.S.C.
§ 2254, asserting that his state court conviction and sentence were imposed in violation of the
Constitution. Petitioner was convicted in Brown County Circuit Court of operating while under the
influence (OWI) (sixth offense) and was sentenced to three years imprisonment. Since petitioner has
indicated he was released from prison on January 1, 2013 (see ECF No. 2 at 5), presumably he is on
probation or parole. In any event, petitioner claims the state unlawfully used his prior convictions
against him to secure the 2010 conviction and enhance his sentence. (Habeas Pet. at 1, 4, ECF No.
1.) Petitioner has also filed a motion for leave to proceed in forma pauperis and a motion for
reconsideration in conjunction with his present petition. (ECF Nos. 2 and 3.) The motion to
proceed in forma pauperis is granted because although the fee for filing a habeas action is only five
dollars, petitioner has little to no financial resources.
I must 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.
After reviewing the record, I conclude that I must dismiss the petition under 28 U.S.C.
§ 2244(b). Section 2244(b) provides:
(1) A claim presented in a second or successive habeas corpus application under
section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under
section 2254 that was not presented in a prior application shall be dismissed unless–
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.
(3)(A) Before a second or successive application permitted by this section is filed in
the district court, the applicant shall move in the appropriate court of appeals for an
order authorizing the district court to consider the application.
Petitioner has already filed a habeas corpus petition in this court, indeed, essentially the same
petition, challenging the same conviction and sentence, and that petition was dismissed on the ground
of procedural default. See January 31, 2014 Screening Order at 2, Case No. 14-C-85, ECF No. 5.
The instant petition is therefore a “second or successive” petition, and any claim petitioner presented
in his prior habeas petition must be dismissed. See Locklear v. Champagne, No. 04-C-799, 2006

2

WL 3813563, at *1 (E.D. Wis. Dec. 26, 2006) (“A denial on grounds of procedural default
constitutes a disposition on the merits and thus renders a subsequent § 2254 petition or § 2255
motion ‘second or successive’ for purposes of the AEDPA.” (internal quotations and citations
omitted)). Furthermore, even if petitioner raises new claims in the instant petition, I do not have
jurisdiction to consider them absent authorization from the Seventh Circuit Court of Appeals. See
28 U.S.C. § 2244(b)(2) and (3)(A).
Petitioner also filed a motion for reconsideration with his present petition. Petitioner requests
that I reconsider my decision in the January 31, 2014 order (dismissing his prior petition) in which
I denied his motion to appoint counsel. (See Pet.’s Mot. for Reconsid. at 1, ECF No. 3.) I already
denied a motion for reconsideration in that case, and the instant motion is not only equally frivolous,
but untimely as well. The motion is therefore denied.
Under Rule 11(a) of the Rules Governing Section 2254 Cases In The United States District
Courts, the district court must issue or deny a certificate of appealability when it enters a final order
dismissing a petition. The certificate of appealability may issue only if the applicant makes a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Petitioner has
not demonstrated that his claims have any merit.
THEREFORE, IT IS ORDERED that petitioner’s motion for leave to proceed in forma
pauperis is GRANTED, petitioner’s motion for reconsideration is DENIED, the petition is
DISMISSED, and a certificate of appealability will not issue. The Clerk is directed to enter
judgment.
Dated this

23rd

day of September, 2014.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Judge
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