Johnson v. Pugh

Filing 89

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 4/8/2013 DENYING ( 87 in 11-C-865) MOTION to Disqualify Judge; DISMISSING ( 83 in 11-C-865, 1 in 13-C-394) MOTION for Relief from Judgment; DISMISSING ( 84 in 11-C-865, 2 in 13-C-394) Amend ed MOTION for Relief from Judgment; DISMISSING ( 85 in 11-C-865, 3 in 13-C-394) MOTION for Relief from Judgment; DISMISSING ( 86 in 11-C-865, 4 in 13-C-394) Amended MOTION for Relief from Judgment, all filed by Steven Johnson. The Court declines to issue certificate of appealability. (cc: all counsel, via US mail to Steven Johnson at Stanley Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

STEVEN JOHNSON,
Petitioner,
-vs-

JEFFREY PUGH, Warden,
Stanley Correctional Institution,
Respondent.

Case No. 11-C-865
(USCA No. 12-3203)
(Successive Case No.
13-C-394 )

DECISION AND ORDER

Currently pending in this action are pro se Petitioner Steven Johnson’s
(“Johnson”) two motions for relief from judgment, two amended motions for relief from
judgment, and a motion to disqualify this Court. (ECF Nos. 83-87.) Johnson contends that
his motions for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure are not successive petitions citing Gonzalez v. Crosby, 545 U.S. 524, 533-35
(2005), and Sanders v. McCaughtry, 333 F. Supp. 2d 797 (E.D. Wis. 2004).
Johnson’s current motion to disqualify this Court from deciding his motions
is the fifth such motion he has filed in this action. As the Court previously informed
Johnson, section 455(b)(1) of Title 28 of the United States Code provides that a judge of the
United States must disqualify himself in any proceeding “[w]here he has a personal bias or
prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning
the proceeding[.]” Actual bias or prejudice must be alleged and established by compelling

evidence. United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985). Moreover, that
bias must arise from an extrajudicial source. Hook v. McDade, 89 F.3d 350, 355 (7th Cir.
1996). Johnson’s assertions of bias are based on this Court's rulings in its August 27, 2012,
Decision and Order. Such alleged bias arising in the course of proceedings is not a basis for
recusal. Id. Therefore, Johnson’s motion to disqualify this Court is denied.
In considering the proper classification of Johnson’s Rule 60(b) motions, the
Court recounts some relevant procedural history. On August 27, 2012, the Court entered a
Decision and Order denying Johnson’s petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. By that Decision and Order, the Court also granted Johnson’s motions to
amend/correct his petition, denied his motions for an evidentiary hearing and his motion for
summary judgment. Final judgment was also entered. Thereafter, Johnson filed motions
for new trial, to amend/correct judgment, and to disqualify judge. Following the denial of
those motions by a September 14, 2012, Decision and Order, Johnson filed an appeal. The
Court denied Johnson’s motions for leave to proceed in forma pauperis on appeal, his request
for a certificate of appealability, and his motion to vacate the denial of certificate of
appealability. When Johnson filed his Rule 60(b) motions and amended Rule 60(b) motions,
his appeal was pending. However, on April 5, 2013, the Court of Appeals for the Seventh
Circuit issued its mandate denying Johnson’s request for a certificate of appealability,
denying Johnson’s motion to proceed in forma pauperis and his motions to take judicial
notice of case law.

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Given that background and procedural status, the Court has reviewed Johnson’s
motions and concludes that, despite Johnson’s contentions to the contrary, his Rule 60(b)
motions attack this Court’s decision “on the merits” and must be treated as a new
“application” for collateral review. See Gonzalez 545 U.S. at 533-35; see also, United States
v. Phillips, 688 F.3d 433, 435 (7th Cir. 2012).
Section 2244(b)(2) of Title 28 of the United States Code states:
(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.
These motions will be considered as collectively constituting a successive
§ 2254 motion, see Phillips, 668 F.3d at 435 (citing Johnson v. United States, 196 F.3d 802
(7th Cir. 1999)), the Court will direct the Clerk of Court to open Johnson’s two motions for

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relief from judgment and two amended motions for relief from judgment as a separate civil
§ 2254 action. Since Johnson has not obtained prior permission from the court of appeals,
that action is dismissed for lack of jurisdiction. Nuñez v. United States, 96 F.3d 990, 991 (7th
Cir. 1996). Johnson is advised that this Court lacks jurisdiction to entertain any further
collateral proceedings unless the Court of Appeals first grants permission under § 2244. If
Johnson intends to seek permission from the court of appeals to file a successive petition, he
should be aware that 7th Circuit Rule 22.2 sets forth the requirements for such petitions. The
text of the Rule is appended to this Decision and Order.
Any petitioner appealing a district court’s ruling dismissing his motion under
28 U.S.C. § 2254, must first secure a certificate of appealability from the district court or the
court of appeals. See Fed. R. App. P. 22(b); 28 U.S.C. § 2253(c)(1). That is true even when
a movant is appealing from the dismissal of an unauthorized second or successive motion.
See Sveum v. Smith, 403 F.3d 447, 448 (7th Cir. 2005).
Therefore, as required by Rule 11 of the Rules Governing Section 2254
Proceedings for the United States District Courts, this Court certifies to the court of appeals
that it has concluded jurists of reason would not find it debatable whether this Court was
correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. §
2253(c)(2). Therefore, this Court declines to issue a certificate of appealability. Since this
Court has not issued a certificate of appealability, Johnson may not appeal this determination.
However, he may seek a certificate from the Court of Appeals under Federal Rule of

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Appellate Procedure 22. See Rule 11(a) of the Rules Governing Section 2254 Proceedings
for the United States District Courts.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
Johnson’s motion to disqualify (ECF No. 87) is DENIED; and
Johnson’s motions for relief from judgment and amended motions for relief
from judgment (ECF Nos. 83-86), are DISMISSED;
The Clerk of Court is DIRECTED to open a separate civil § 2254 action with
Johnson’s motions for relief from judgment and amended motions for relief from judgment
and to file a copy of this Decision and Order in that action;
The successive § 2254 action (Case No. 13-C-394) is DISMISSED for lack
of jurisdiction;
The Clerk of Court is DIRECTED to enter judgment accordingly; and
The Court also DECLINES to issue a certificate of appealability from this
Order pursuant to Rule 11 of the Rules Governing Section 2254 Proceedings in the United
States District Courts.
Dated at Milwaukee, Wisconsin, this 8th day of April, 2013.
BY THE COURT:

HON. RUDOLPH T. RANDA
U.S. District Judge

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Circuit Rule 22.2. Successive Petitions for Collateral Review
(a) A request under 28 U.S.C. §2244(b) or the final paragraph of 28 U.S.C. §2255 for leave to file
a second or successive petition must include the following information and attachments, in this
order:
(1) A disclosure statement, if required by Circuit Rule 26.1.
(2) A short narrative statement of all claims the person wishes to present for decision. This statement
must disclose whether any of these claims has been presented previously to any state or federal court
and, if it was, how each court to which it was presented resolved it. If the claim has not previously
been presented to a federal court, the applicant must state either:
(A) That the claim depends on a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court; or
(B) That the factual predicate for the claim could not have been discovered previously through the
exercise of due diligence and that the facts, if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder
would have found the applicant guilty of the crime, had there been no constitutional error.
(3) A short narrative statement explaining how the person proposes to establish the requirements
mentioned above. An applicant who relies on a new rule of constitutional law must identify the new
rule, the case that establishes that rule, and the decision of the Supreme Court that holds this new
rule applicable to cases on collateral review.
(4) Copies of all opinions rendered by any state or federal court previously rendered in the criminal
prosecution, any appeal, and any collateral attack.
(5) Copies of all prior petitions or motions for collateral review.
(b) A copy of the application, together with all attachments, must be served on the attorney for the
appropriate government agency at the same time as the application is filed with the court. The
application must include a certificate stating who was served, by what means, and when. If the
application is made by a prisoner who is not represented by counsel, filing and service may be made
under the terms of Fed. R. App. P. 4(c).
(c) Except in capital cases in which execution is imminent, the attorney for the custodian (in state
cases) or the United States Attorney (in federal cases) may file a response within 14 days. When an
execution is imminent, the court will not wait for a response. A response must include copies of any
petitions or opinions that the applicant omitted from the papers.
(d) The applicant may file a reply memorandum within 14 days of the response, after which the
request will be submitted to a panel of the court for decision.

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(e) An applicant’s failure to supply the information and documents required by this rule will lead
the court to dismiss the application, but without prejudice to its renewal in proper form.

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