Thums v. Dittman

Filing 19

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph on 2/10/2015 DENYING petitioner's petition for writ of habeas corpus; FURTHER ORDERED this action is DISMISSED. ALSO ORDERED that a certificate of appealability shall not issue. ALSO ORDERED that the petitioner's motion for default judgment is DENIED AS MOOT. (cc: all counsel, mailed to petitioner) (djd)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RONNIE LEE THUMS,
Petitioner,
v.

Case No. 14-CV-574

WARDEN MICHAEL DITTMANN,
Respondent.

DECISION AND ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS AND DISMISSING CASE

Ronnie Lee Thums (“Thums”), a Wisconsin prisoner, petitions for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Thums challenges his Winnebago County convictions for stalking.1
(Docket # 1 at 2; Reply to Respondent’s Answer to the Petition, Docket # 15 at 2.) Here, I address
the respondent’s answer that Thums’ petition is untimely filed. (Answer to the Petition (“Answer”),
Docket # 12). Before turning to that issue, I also address Thums’ motion for default judgment.
(Docket # 16.)
MOTION FOR DEFAULT JUDGMENT
Thums moved for default judgment because the respondent did not file a response brief. The
respondent responded to the motion for default judgment, explaining he had miscalculated the due
date and asking the court to accept the late filing of his response brief. (Docket # 17.) A default
judgment against a custodian in a habeas corpus proceeding is especially rare and may be granted
when the delay is extreme. Ruiz v. Cady, 660 F.2d 337, 340 (7th Cir. 1981). Here, because the delay

1

Though in his petition Thums includes convictions for eluding and for second degree
endangering safety, he later states he is challenging only the stalking conviction. (Docket
# 15 at 2.)

in receiving the brief was negligible and because in his reply Thums states that he is “still quite
comfortable having this Court make it’s [sic] judgment on the merits,” I will accept the respondent’s
brief.
STATUTE OF LIMITATIONS
As stated above, in his answer to the petition as well as in his response brief, the respondent
argues that the petition must be denied for untimeliness. I will provide some factual background and
then address the requirements of the statute of limitations.
Background
As relevant here, Thums was convicted of stalking in Winnebago County case number
2004CF301 on November 5, 2004. (Judgment of Conviction, Answer, Exh. A-2, Docket # 12-2.) On
the same day, Thums was also convicted of eluding and second degree recklessly endangering safety
in Winnebago County case number 2004CF132. (Judgment of Conviction, Answer, Exh. A-3,
Docket # 12-3.) On August 24, 2005, Thums filed a post-conviction motion pursuant to Wis. Stat.
§ 974.06 challenging his sentence, alleging that he was improperly sentenced under Truth in
Sentencing I rather than Truth in Sentencing II. (Ct. App. Decision in 2012AP466, 2012AP467,
Answer, Exh. B, Docket # 12-4 at 2.) Following the circuit court’s denial of his motion, Thums
appealed. The court of appeals reversed and remanded, and Thums was resentenced on December
7, 2006. (Id.; Wisconsin Circuit Court Access Program (“CCAP”), Winnebago County Cases
2004CF132 and 2004CF301.) Thums filed another post-conviction motion on April 4, 2007 in
2004CF301 on the basis that the judgment incorrectly stated his stalking conviction was for a Class
C felony. (CCAP, Winnebago County Case 2004CF301; Docket # 12-4 at 2.) The court issued an
amended judgment on April 13, 2007. (Id.) In June 2009, Thums petitioned for sentence adjustment

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in both cases, and his petitions were denied. (CCAP, Winnebago County Cases 2004CF132 and
2004CF301.)
In January 2012, Thums filed a post-conviction motion pursuant to Wis. Stat. § 974.06 again
challenging his sentence. (Id.; Docket # 12-4 at 2.) He argued that the presentence investigation
report (“PSI”) contained inaccurate information amounting to a new factor under State v. Harbor,
2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828. (Docket # 12-4 at 2.) The circuit court denied his
motion and Thums appealed. (Id.) The court of appeals affirmed the circuit in a summary disposition,
finding that he was procedurally barred from bringing the claim and that even if not barred, his claim
would fail on the merits. (Id. at 3.) Thums’ petition for review in the Wisconsin Supreme Court was
denied on August 12, 2013. (CCAP, Winnebago County Case 2004CF132.) On May 20, 2014,
Thums filed this federal habeas petition. (Docket # 1.)
Analysis
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254,
governs this case. Under AEDPA, habeas petitions challenging state court confinement are subject
to the statute of limitations set forth in 28 U.S.C. § 2244. That section provides that “[a] 1–year
period of limitation shall apply to an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). Additionally, the statute specifies
when the one-year limitations period begins to run, and also provides that the period of limitations
is tolled while certain state proceedings are pending.
Specifically the statute provides as follows:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of—

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(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
(2) 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 shall
not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
Here, Thums’ petition is most appropriately analyzed under 28 U.S.C. § 2244(d)(1)(A) and
(D). As to § 2244(d)(1)(A), Thums’ convictions became final for purposes of the AEDPA one-year
statute of limitations on November 5, 2004. He filed no direct appeal. Therefore, the clock started
to run 20 days—the number of days Thums had to file a notice of appeal pursuant to Rule
809.30(2)(b)—after the entry of judgment on November 29, 2005 (two days were holidays, extending
the 20 days to November 27, 2005, and because November 27th was a Saturday, the deadline was
November 29, 2005). Thums’ one year time limit expired on November 29, 2006. Though the filing
of a state court motion will toll the time limits, once the one-year statute of limitation runs, the filing
of any subsequent state court motion concerning the convictions does not “re-start” the clock. See De
Jesus v. Acevedo, 567 F.3d 941, 943 (7th Cir. 2009) (explaining that § 2244(d)(2) excludes particular

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time from the one-year limitation calculation and does not mean that the filing of another state postconviction or collateral relief motion restarts the clock).
Even starting the calculations from April 13, 2007, the date on which the circuit entered an
amended judgment in 2004CF301 (the stalking charge) following re-sentencing, as well as a
modification for a clerical error, Thums’ petition is still untimely. From that date, Thums had until
April 13, 2008 to file his habeas petition. He filed no other state court motions until June 2009, at
which time no time remained in the one-year statute of limitations to be tolled. Therefore, when
Thums filed his petition on May 20, 2014, it was far outside the one-year statute of limitations and
therefore does not meet the criteria of § 2244(d)(1)(A).
Thums’ petition is also untimely when analyzed under § 2244(d)(1)(D). Thums suggests that
his petition rests on new information. The basis of his 2012 post-conviction motion was that he had
discovered false information in the PSI. (See Docket # 12-4 at 3.) However, by Thums’ own
admission, he discovered the information in the PSI in 2010.2 (Docket # 15 at 12.) He waited over
eighteen months to file his post-conviction motion challenging the information in the PSI. (See
Docket # 12-4.) Therefore, even if the proper date was to be analyzed under § 2244(d)(1)(D)—the
date on which Thums discovered the new information—his post-conviction motion, as well as his
habeas petition, were filed approximately two years outside of the one-year statute of limitations.
Thus, Thums’ petition is untimely under the AEDPA one-year statute of limitations.
There are two additional considerations. First, the doctrine of equitable tolling can excuse an
untimely filed habeas petition. Equitable tolling is granted “sparingly” and only when extraordinary

2

Thums initially stated that he first discovered the information in the PSI in 2009. (Docket
# 15 at 12.) However, in his reply brief in support of his motion for default judgment, he
states that it was in fact May or June of 2010 that he discovered the information in the
PSI. (Docket # 18 at 5.)

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circumstances far beyond the litigant’s control prevented timely filing. Simms v. Acevedo, 595 F.3d
774, 781 (7th Cir. 2010). In deciding whether the AEDPA limitations period should be equitably
tolled, the court must determine that (1) the petitioner “has pursued his rights diligently” and (2)
“extraordinary circumstances beyond his control stood in the way of the timely filing of his petition.”
Id. A litigant seeking equitable tolling bears the burden of establishing these two elements. Holland
v. Florida, 130 S.Ct. 2549, 2566 (2010); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Thums argues that he did not know the basis for his challenge to his sentence until well after
his sentencing, and he also argues that among the “external impediments” he faced were “being
shipped around the state” and “being held in jail on unreasonably high bond . . . .” (Docket # 15 at
4.) Thums expounded upon this in his reply brief in support of his motion for default judgment,
affirmatively alleging that his being transferred between various correctional institutions and being
held on bond prevented him from filing a motion concerning the information in the PSI. (Docket #
18 at 7-9.) The bar for “extraordinary circumstances” is high. See Montenegro v. United States, 248 F.3d
585, 594 (7th Cir. 2001) (finding that petitioner’s language barrier, limited education, lack of
knowledge of the legal system, and prison transfer did not constitute extraordinary circumstances to
excuse his failure to discover that his attorney had not filed an appeal). Thums has not met the high
bar for proving that extraordinary circumstances prevented him from filing his motion in state court
following his discovery of the information in the PSI. He cannot show that he pursued his rights
diligently. Therefore, equitable tolling does not apply.
Next, the United States Supreme Court held in McQuiggin v. Perkins, 133 S. Ct. 1924 (2013),
that the miscarriage of justice exception applies to AEDPA’s statute of limitations. However, to
“invoke the miscarriage of justice exception to AEDPA’s statute of limitations, we repeat, a

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petitioner ‘must show that it is more likely than not that no reasonable juror would have convicted
him in the light of the new evidence.’” McQuiggin, 133 S. Ct. at 1935 (quoting Schlup v. Delo, 513 U.S.
298, 327 (1995)). Though Thums argues that the state courts’ denial of relief constitutes a
“miscarriage of justice,” he has not presented evidence to satisfy the standard in McQuiggin.
In sum, Thums has not shown that either exception to the one-year statute of limitation
applies to his untimely petition. Therefore, Thums’ petition must be denied because it is untimely.
Because I find that Thums’ petition is untimely, I need not address the respondent’s alternative
arguments that Thums procedurally defaulted and that the petition fails on the merits.
CERTIFICATE OF APPEALABILITY
According to Rule 11(a) of the Rules Governing § 2254 Cases, the court must issue or deny
a certificate of appealability “when it enters a final order adverse to the applicant.” A certificate of
appealability may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing of the denial of a
constitutional right, the petitioner must demonstrate that “reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner or that
the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, and n. 4).
When issues are resolved on procedural grounds, a certificate of appealability “should issue
when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Id. Each showing is a

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threshold inquiry; thus, I need only address one component if that particular showing will resolve the
issue. Id. at 485.
For the reasons set forth in this decision denying Thums’ habeas petition, Thums’ untimely
petition does not warrant a certificate of appealability. Whether Thums’ petition is untimely is a
straightforward issue, and I do not believe that a reasonable jurist would find it debatable whether
I erred in resolving this procedural question. Additionally, I do not believe that reasonable jurists
would find it debatable whether equitable tolling and/or the miscarriage of justice exceptions apply
to his untimely petition.
Thus, the court will deny a certificate of appealability as to Thums’ petition. Of course, Thums
retains the right to seek a certificate of appealability from the Court of Appeals pursuant to Rule 22(b)
of the Federal Rules of Appellate Procedure.

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ORDER
NOW, THEREFORE, IT IS ORDERED that the petitioner’s petition for a writ of
habeas corpus (Docket # 1) be and hereby is DENIED.
IT IS FURTHER ORDERED that this action be and hereby is DISMISSED.
IT IS ALSO ORDERED that a certificate of appealability shall not issue.
IT IS ALSO ORDERED that the petitioner’s motion for default judgment (Docket # 16)
is DENIED AS MOOT.
FINALLY, IT IS ORDERED that the Clerk of Court enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 10th day of February, 2015.

BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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