Weso v. Pollard

Filing 12

ORDER signed by Judge J P Stadtmueller on 1/29/15: denying 1 Petitioner's Petition for a Writ of Habeas Corpus; denying a certificate of appealability as to Petitioner's Petition; and DISMISSING this action with prejudice. See Order. (cc: Petitioner, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIAM E. WESO,
Petitioner,
v.

Case No. 14-CV-888-JPS

WILLIAM POLLARD,
Respondent.

ORDER

The petitioner alleges that there is newly discovered evidence in his
underlying criminal case that would undermine his conviction. (See Docket
#1). However, he did not provide very clear information about the nature of
that evidence or how he had recently obtained it. Thus, in screening his
petition, the Court ordered that the petitioner provide additional information
about the newly discovered evidence. (Docket #7). The petitioner filed a
statement in response.
Because the Court was awaiting that further information, it has not yet
screened the petition. The Court will now screen the petition, after providing
some detailed information about the new evidence in the petitioner’s
underlying criminal case.
1.

BACKGROUND
1.1

Underlying Facts

In August of 1999, the petitioner and his brother were at their
mother’s house and, for reasons unclear, decided to shoot guns that they had
in their possession. State v. Weso, 2002 WI App 292, ¶ 2, 654 N.W.2d 94, 258

Wis. 2d 982 (unpublished disposition).1 A neighbor called the police several
times. Id. In her third call to the police, she stated that she had just spoken by
phone to the petitioner, who told her that he was going to wait on his porch
with the guns and shoot at the police if necessary. Id.
Two deputies were dispatched to the scene after the neighbor’s first
call. Id. at ¶ 3. After arriving in the area, the deputies stopped a short distance
away from the house to determine whether they heard gunshots. Id. Indeed,
they did, so they drove to the house. Id. In that process, they heard another
shot and called for backup. Id. Two backup officers were dispatched.2 Id. at
¶ 4. Upon the backup officers’ arrival at the scene, the police used a public
address system to speak to the house’s inhabitants and get them to leave the
house. Id.
One of the first-on-scene deputies moved to the back of the house,
where he heard a window open. Id. at ¶ 5. Three people exited that window
and were walking towards the deputy, who observed that all three were
carrying weapons. Id.
The deputy announced his position and ordered the individuals to
drop their guns; the individuals did not comply, and one fired at the deputy.
Id. at ¶ 6. The deputy fired back, and the group divided: one individual ran
to the left and the two others ran to the right.
1

This citation is to the Wisconsin Court of Appeals’ decision on the
petitioner’s direct appeal. The Court understands that the petitioner asserts that the
factual predicate presented against him at trial was later undermined by the new
evidence; nonetheless, the Court of Appeals’ decision provides the most succinct
factual statement. The Court, therefore, uses the Court of Appeals’ decision as its
starting point.
2

Around this same time, the neighbor was making her third emergency call,
reporting that the petitioner had threatened to shoot at police; the dispatcher
reported this information to the police. Id. at ¶ 4.

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The two individuals who had run to the right apparently continued
to fire shots because the deputy heard additional shots, and the remaining
officers testified to being fired upon by a pair of individuals. Id. at ¶ 7. The
remaining officers returned fire, and one used his flashlight to illuminate the
scene. Id. That officer later identified the petitioner as having run towards the
officers with a gun, causing the petitioner to run towards the woods. Id.
Meanwhile, the deputy who had first seen the individuals exiting the
window at the back of the house, observed the two individuals who were
firing on the officers near a stand of woods. Id. at ¶ 6. One of those
individuals was aiming his gun at the remaining police officers. Id. The
deputy shot and hit that individual, causing the individual to fall to the
ground. Id. The remaining individual then bent down and picked up a “long
item”—presumably a gun—from the individual who had been shot then ran
off. Id. The individual who was shot turned out to be Alvin, the petitioner’s
brother. Id. at ¶¶ 6, 8.
The petitioner, himself, was eventually found hiding deeper in the
woods. Id. at ¶ 8. He did not have a gun on him, but was in possession of
shotgun shells. Id. The police also located two shotguns in the woods. Id.
They did not find the third person who had exited the house.
1.2

Petitioner’s Trial and Appeal

On August 30, 1999, the petitioner was charged with, among other
things, three counts of attempted first-degree homicide, as party to a crime.
Id. at ¶ 9.3 A jury trial was held in May of 2000, at which the jury convicted
him of those three counts. Id.

3

Where specific dates were unclear from the petition or cited cases, the
Court was able to access the Wisconsin Court System’s public records database.
That database includes the dates of relevant case activity.

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He appealed his conviction, arguing that the evidence against him was
insufficient to sustain his conviction, id. at ¶¶ 10–19, and that the trial court
failed to conduct a Miranda-Goodchild hearing outside the presence of the
jury, id. at ¶ 20–26.
The Wisconsin Court of Appeals affirmed his conviction. Specifically,
as to the sufficiency of the evidence,4 it determined that, while the precise
sequence of events that had occurred was difficult to establish, there was
ample circumstantial evidence to support the petitioner’s guilt on the counts
of attempted first-degree homicide, as party to a crime. Id. at ¶ 17. The
Wisconsin Court of Appeals stated that various inferences were “sufficient
to support the finding that even if [the petitioner] was not the primary
shooter, he aided at least Alvin in an attempt to kill,” the officers who had
not traveled to the back of the house. Id. Moreover, the inference also were
“sufficient to support a verdict on the grounds of aiding and abetting the
attempt to kill justice even if [the petitioner] had not been the principal in
that attempt.” Id. The Wisconsin Court of Appeals went on to find that—even
if the petitioner had not fired a single shot—the jury could easily have
determined that the petitioner engaged in a conspiracy to attempt murder.
Id. at ¶ 18. The Wisconsin Court of Appeals concluded:
In any event, the evidence show[ed] that all three people were
acting together at the time of the shootings… . Given this and
all the other evidence, a reasonable jury could have inferred
the three people were working together under a master plan as
conspirators, making it irrelevant whether [the petitioner]
actually fired any shots.
Id. at ¶ 19.

4

The Miranda-Goodchild issue is of limited relevance to the petition in this
case, so the Court does not address it.

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The petitioner filed a petition for review in the Wisconsin Supreme
Court, which was denied on January 14, 2003. State v. Weso, 2003 WI 16, 657
N.W.2d 707, 259 Wis. 2d 101. The petitioner did not file a petition for a writ
of certiorari in the United States Supreme Court.
1.3

Trial and Conviction of Co-Conspirator

The primary reason for the petitioner’s current petition before the
Court stems from the trial and conviction of Robert Jacobson (“Jacobson”),
who was the third individual present—aside from the petitioner and his
brother—on the night of the shooting incident.
In November of 2000—after the petitioner’s jury trial, but before
completion of his direct appeal—the State of Wisconsin filed criminal charges
against Jacobson. See State v. Jacobson, 2004 WI App 125, ¶ 1, 683 N.W.2d 93,
275 Wis. 2d 276. In the interim, the petitioner’s brother had altered his
account of events, stating that Jacobson had been the third individual present
the night of the incident. Id. at ¶ 7.
A jury trial was held in July of 2001, and the jury returned a verdict
against Jacobson finding him guilty of attempted first degree homicide (not
as party to a crime). See id. at ¶ 1. It is not clear whether the State presented
Jacobson as being one of the two individuals who ran towards the forest and
fired upon police, but the State did submit evidence to establish that Jacobson
had at least carried and fired a weapon. Id. at ¶¶ 8.
Jacobson appealed on several grounds that are not relevant to this
case, but the Wisconsin Court of Appeals affirmed his conviction. Id. The
Wisconsin Supreme Court denied his petition for review, and it does not
appear that Jacobson petitioned for certiorari before the United States
Supreme Court. State v. Jacobson, 2004 WI 123, 687 N.W.2d 523, 275 Wis. 2d
296.
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1.4

Petitioner’s Current Habeas Petition

This brings us to the habeas petition currently before the Court. The
petitioner filed a petition for a writ of habeas corpus on July 25, 2014. (Docket
#1). In it, he asserts two separate grounds for habeas relief.
In the first, the petitioner argues that “[n]ewly discovered evidence
requires new trial and resentencing.” (Docket #1 at 6). He provides the
following further detail:
The state argued to the jury that the petitioner personally fired
a shotgun at Deputy Justice [the deputy who had moved to the
back of the house], and was liable for his younger brother
allegedly firing towards (2) other deputies while an unknown
third party fled without discharging a firearm.
After his conviction new evidence came to light in the form of
(2) witnesses. The petitioner’s brother made a confidential
statement to the A.D.A. and the detectives that Robert
Jacobson was the third party and had recently confessed that
he was the one who fired the shotgun at Dep. Justice, he
further denied the existence of any plan or conspiracy and
provided evidence to the contrary along with material
impeachment evidence against the neighbor who called 911
and alleged that William [the petitioner] called her and
threatened the deputies. Jacobson also confessed to another
inmate that he shot at Deputy Justice.
The petitioner just received evidence establishing the above
and is currently seeking representation to file a motion for
post-conviction relief, pursuant to Wis. Stat. sec. 974.06.
(Docket #1 at 6–7).
The petitioner’s second ground for relief is that the prosecutor
withheld Brady evidence from him. (Docket #1 at 7). Specifically, the
petitioner alleges that the prosecutor failed to disclose: (1) video-recorded
statements of his brother, Alvin (in which Alvin, presumably, stated that

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Jacobson fired a shot); and (2) the statement of John Czaplicki, the inmate
who testified that Jacobson had admitted to firing a shot. (Docket #1 at 7–8).
In describing the nature of this claim, the petitioner also argues that “[t]he
state was successful in obtaining a conviction against Jacobson for the exact
same conduct in which it convicted the petitioner yet never disclosed the
exculpatory evidence to the defense.”
The petitioner appears to realize that both of these claims are likely
time-barred, because he provides information about their recent discovery.
(Docket #1 at 6–8). He notes that he “does not have a relationship with his
brother,” and only realized that these claims may exist “[a]fter receiving
hearsay information that the above evidence existed.” (Docket #1 at 7–8).
After learning of the evidence, the petitioner asked the sheriff for
copies of Alvin’s and Czaplicki’s statements, but the sheriff did not have such
documents. He received no response from the prosecutor. Thus, he states
that he has ordered the transcripts for Jacobson’s trial; however, he has also
had difficulty receiving those documents.
Finally, the Court notes that the petitioner filed a motion for a stay and
abeyance at the same time he filed his petition. (Docket #2). The petitioner
has not exhausted his grounds in the state courts, and so he requests that the
Court grant a stay and abeyance in this case to allow him to do so. (See, e.g.,
Docket #1 at 6–8; Docket #2).
Before taking any action on that motion or on the petition, the Court
believed that further information would be necessary from the petitioner
regarding the newly discovered evidence. It, therefore, requested that the
petitioner file a statement to clarify the nature of that evidence. (Docket #7).
The petitioner filed that statement on November 26, 2014. (Docket #10). It
does not clarify much. The petitioner states:
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Weso did not learn of the newly discovered evidence until
December 2013, or January or February of this year [2014] from
family members familiar with Weso’s case, however, Weso did
not know that the information constitutes evidence that could
provide relief from the conviction until shortly before Weso
filed his petition on July 25, 2014, with the assistance of another
inmate.
The newly discovered evidence impacts Weso’s claims because
it demonstrates that the State used two inconsistent theories
between Weso’s case and a codefendant’s case, including but
not limited the State’s opening statement, evidence, closing
argument, sentencing statements to the judge, etc.
Weso is still currently attempting to secure the transcripts from
the Clerk of Circuit Court’s Office to prove the claims in his
pending petition, however, he is having difficulty in locating
the court reporter.
Weso believes that he will be able to secure the material in time
to meet his burden of proof and also believes that said
evidence constitutes strong grounds to support a motion for a
new trial, and at minimum, resentencing.
Wherefore, Weso respectfully submits this statement in
support of demonstrating diligence and good cause.
(Docket #11, ¶¶ 1–4).
2.

DISCUSSION
With that background in place, the Court now turns to screening the

petition.
Rule 4 of the Rules Governing § 2254 Cases in the United States
District Courts authorizes a district court to conduct an initial screening of
habeas corpus petitions and to dismiss a petition summarily where “it plainly
appears from the face of the petition…that the petitioner is not entitled to
relief.” This rule provides the district court the power to dismiss both those
Page 8 of 18

petitions that do not state a claim upon which relief may be granted and
those petitions that are factually frivolous. See Small v. Endicott, 998 F.2d 411,
414 (7th Cir. 1993). Upon an initial Rule 4 review of habeas petitions, the
court will analyze whether the petitioner has avoided statute of limitations
bars, exhausted available state remedies, avoided procedural default, and set
forth cognizable constitutional or federal law claims.
2.1

Timeliness

The court begins its Rule 4 review by examining the timeliness of the
petition. The general timeliness rules are set forth in 28 U.S.C. § 2244(d), and
the Court begins by discussing the fact that the petition is not timely under
that statutory rule. Concluding that the petition is untimely under the
statutory rule, the Court then goes on to discuss several exceptions to that
rule, which do not excuse the petition’s untimeliness.
2.1.1

Statutory Timeliness

A state prisoner in custody pursuant to a state court judgment has one
year from the date “the judgment became final” to seek federal habeas relief.
28 U.S.C. § 2244(d)(1)(A). A judgment becomes final within the meaning of
§ 2244(d)(1)(A) when all direct appeals in the state courts are concluded
followed by either the completion or denial of certiorari proceedings in the
U.S. Supreme Court, or if certiorari is not sought, at the expiration of the 90
days allowed for filing for certiorari. See Ray v. Clements, 700 F.3d 993, 1003
(citing Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002)).
Here, it appears that the petition is untimely under 28 U.S.C.
§ 2244(d)(1)(A). According to the information provided in his federal habeas
petition, the petitioner’s conviction became final on April 14, 2003, which was
90 days after the Wisconsin Supreme Court denied the petition for review,
because the petitioner did not file a petition for a writ of certiorari with the
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United States Supreme Court. (Docket #1 at 3). Under this formulation, the
petition would have been due in April of 2004, making the petitioner’s filing
in this case more than 10 years outside of the limitations period.
That is not the end of the analysis, though; 28 U.S.C. § 2244(d) has
several exceptions to the standard 1-year limitations period. Only one of
those provisions could possibly apply in this case: 28 U.S.C. § 2244(d)(1)(D)’s
directive that the 1-year limitations period begins to run on “the date on
which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.”5
However, even applying the later start date under 28 U.S.C.
§ 2244(d)(1)(D), the Court must conclude that the petition is untimely. Under
28 U.S.C. § 2244(d)(1)(D), the 1-year limitations period begins to accrue
“when the factual predicate ‘could have been discovered through the
exercise of due diligence,’ not when it was actually discovered by a given
prisoner.” Owens v. Body, 235 F.3d 356, 359 (7th Cir. 2001) (quoting 28 U.S.C.
§ 2244(d)(1)(D).
Key to the timeliness determination in this case is the phrase “could
have been discovered through the exercise of due diligence.” Simply put, the
petitioner—through the exercise of due diligence—could have discovered the
factual predicate a very long time ago.
It is entirely irrelevant that the petitioner did not become aware of this
factual predicate until more recently, as he alleges in his supplemental
statement. (Docket #11). That is because the Court is concerned only with the
5

The later start dates under 28 U.S.C. §§ 2244(d)(1)(B) and (C) do not apply
because the petitioner does not assert that there was a state-imposed impediment
or the development of new case law. 28 U.S.C. § 2244(d)(2)’s tolling provisions do
not apply because the petitioner does not indicate that he engaged in any
post-conviction or other collateral proceedings. (Docket #1 at 4–5).

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time at which the factual predicate “could have been discovered through the
exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). Thus, Courts have found
that the limitations period starts to run under 28 U.S.C. § 2244(d)(1)(D) even
where the petitioner has not received a state’s files that would form the
factual predicate of his claim; because those files were public records and
could have been requested long before, the limitations period started on the
date of their availability, rather than the date of their disclosure. See, e.g.,
Clifton v. Sec'y, Dep't of Corr., No. 10-CV-539, 2012 WL 3670264, at *4 (M.D.
Fla. Aug. 27, 2012) (citing Owens, 235 F.3d at 359; Heard v. Cain, No. 06–CV3207, 2007 WL 763691 at *3 (E.D.La. Mar.9, 2007)).
This case presents entirely the same issue. In alleging newly
discovered evidence, the petitioner refers to: the changed statement of his
brother; the new testimony from Czaplicki; and the resulting fact that the
State of Wisconsin used an (allegedly) inconsistent theory to convict
Jacobson. But, at the very latest, all of that evidence was a matter of public
record in May of 2004, when the Wisconsin Court of Appeals issued the
above-cited decision in Jacobson’s case (if not long before, when Jacobson
was indicted or tried on the basis of the petitioner’s brother’s changed
statement). That Wisconsin Court of Appeals decision clearly lays out each
piece of information that the petitioner now alleges is newly-discovered.
Moreover, it is a readily-available public document. The petitioner could
have—and should have—been able to locate that document immediately
after its issuance in May of 2004.
Thus, at the very latest, the 1-year limitations period expired in May
of 2005, even applying 28 U.S.C. § 2244(d)(1)(D)’s later starting date. But—as
is the case with all things habeas-related—there are yet more exceptions to
that finding of untimeliness.
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2.1.2

McQuiggin v. Perkins Actual Innocence

The first of those additional exceptions is the actual-innocence rule
annunciated in McQuiggin v. Perkins, --- U.S. ----, 133 S.Ct. 1924 (2013). In
McQuiggin, the United States Supreme Court held that “actual innocence, if
proved, serves as a gateway through which a petitioner may pass…[to
excuse] the expiration of the statute of limitations.” Id. at 1928.
To determine whether the petitioner may be entitled to this exception,
the Court must first determine whether he actually raised an actual
innocence claim in his petition. See, e.g., Awon v. United States, 308 F.3d 133,
143 (1st Cir. 2002). While the petitioner may never use the precise wording
of “actual innocence,” he may be alleging that he was convicted of a crime
that he could not have committed, assuming that another person fired a shot.
(See Docket #1 at 6–8). The Court will construe his petition liberally, since he
is appearing pro se, Ward v. Jenkins, 613 F.3d 692, 697 (2010), and assume that
he is making such an argument.
Next, the Court must decide whether the petitioner offers “new
evidence” that would be sufficient to make a credible claim for actual
innocence; he does not. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (claim of
actual innocence “requires a petitioner to support his allegations of
constitutional error with new reliable evidence.”). The Court assumes that
the evidence is “new,” because it was not available at the time of trial. But the
evidence does not support a “credible” claim for actual innocence, which
requires a showing that “it is more likely than not that no reasonable juror
would have convicted him,” in light of the evidence. See, e.g., id.; McQuiggin,
133 S.Ct. at 1927. In fact, the Wisconsin Court of Appeals implicitly addressed
this issue in its consideration of the petitioner’s appeal, essentially cutting the
petitioner off at the pass: the Wisconsin Court of Appeals noted that the
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petitioner was charged as a party to the crime, meaning that the jury’s
verdict of guilty was supported by sufficient evidence, regardless of the
petitioner’s actual role in the shooting. See Weso, 2002 WI 292 at ¶¶ 17–19. It
was ultimately “irrelevant whether Weso actually fired any shots.” Id. at
¶ 19. So, even with this new evidence—which, at the very best for the
petitioner, would establish only that he did not fire any shots—the petitioner
would not be innocent of the party-to-a-crime charges of which he was found
guilty. Rather, just as the Wisconsin Court of Appeals found, there would
still be ample evidence by which a jury could find the petitioner guilty.
Because, even with the new evidence, the Court cannot conclude that
“it is more likely than not that no reasonable juror would have convicted,”
the petitioner, the Court also cannot extend the benefits of the McQuiggin
exception to timeliness to his petition.
2.1.3

Equitable Tolling

The final potential exception to the timeliness rules is equitable tolling.
See Holland v. Florida, 560 U.S. 631, 645 (2010). “Equitable tolling is rarely
granted,” and, to be entitled to it, the petitioner must establish that he was:
(1) pursuing his rights diligently; and (2) prevented from filing by some
extraordinary circumstance. See, e.g., Tucker v. Kingston, 538 F.3d 732, 734
(2008) (citations omitted). Even in extremely unfortunate circumstances,
equitable tolling often is not available. See, e.g., United States v. Marcello, 212
F.3d 1005, 1010 (7th Cir. 2000) (no equitable tolling where petition filed one
day late and only shortly after attorney’s father had died); Modrowski v. Mote,
322 F.3d 965 (7th Cir. 2003) (no equitable tolling where petition one day late
as a result of attorney’s incapacity).
Neither of those is the case, here. As already discussed, the Wisconsin
Court of Appeals issued its decision in Jacobson’s case nearly nine years
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ago—and that was after the jury trial had occurred. There is absolutely
nothing in the record that would support a finding that the petitioner was
prevented from finding the evidence. Essentially, his only justification for
failure to discover it is that he does not have a relationship with his brother
such that he would have learned about his brother’s altered testimony. But
that does not change the fact that all of this evidence was available in public
records. Nothing prevented the petitioner from accessing or requesting those
records. Thus, the second factor is not satisfied; and, seeing as nearly a
decade went by without the petitioner pursuing the evidence, it is clear that
he also was not pursuing his rights diligently, and so the first factor is not
satisfied, either.
Having determined that neither of the equitable estoppel factors are
satisfied, and thus that equitable estoppel is not available to the petitioner,
the Court is obliged to determine conclusively that the petition is untimely.
2.2

Substance of Petitioner’s Claims

Typically, after addressing the timeliness of a petition, the Court
examines whether the petitioner exhausted or procedurally defaulted the
claims in the petition. In this case, the Court already knows that the claims
are not exhausted—the petitioner has moved for a stay and abeyance so that
he can now exhaust them. (See Docket #2).6 Thus, the Court will turn
immediately to what is typically the final portion of its analysis: whether the
petition sets forth cognizable constitutional or federal law claims.
The petitioner listed two grounds for relief: (1) “[n]ewly discovered
evidence requires new trial and resentencing”; and (2) “[t]he prosecutor

6

Moreover, because the claims still have not been presented to the state
courts, it would be impossible to determine whether they are procedurally
defaulted.

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withheld Brady evidence.” (Docket #1 at 6–7). The first of those
grounds—newly discovered evidence—is not, actually, a claim in itself.7
Rather, it seems to be asserting either actual innocence or (together with the
second ground) that the prosecutor violated his rights by presenting an
inconsistent theory in a later trial. Thus, the Court believes that there are
actually three claims that the petitioner may be asserting: (1) actual
innocence; (2) inconsistent theory; and (3) Brady violation. Each of those
claims is untenable.
2.2.1

Actual Innocence

As to the first claim, the Supreme Court has never recognized actual
innocence as a cognizable, standalone habeas claim. See, e.g., Herrera v. Colins,
506 U.S. 390, 404 (1993); McQuiggin, 133 S.Ct. at 1931 (“We have not resolved
whether a prisoner may be entitled to habeas relief based on a freestanding
claim of actual innocence.”). Therefore, this claim is simply non-cognizable.
However, as the Court already discussed, the new evidence does not support
his actual innocence, because he would still have been convicted even with
the evidence.
2.2.2

Inconsistent Theory

As to the second claim, there is no clearly established federal law that
holds that a prosecutor cannot present an inconsistent theory at a later trial.
See, e.g., Bradshaw v. Stumpf, 545 U.S. 175, 186–87 (2005) (similar to this case,
where “the precise identity of the triggerman was immaterial to [the
petitioner’s] conviction,” the prosecutor’s presentation of an inconsistent
7

As a matter of pure logic, the existence of new evidence, standing alone,
cannot entitle a petitioner to habeas relief. In practically any case, it would be easy
to deduce new evidence. The mere existence of new evidence does not establish a
violation of the laws of the United States, and thus does not, itself, form the basis
for habeas relief.

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theory in another trial was not the basis for habeas relief); Stumpf v. Robinson,
722 F.3d 739, 748–751 (6th Cir. 2013), cert. denied 134 S.Ct. 905 (2014); Littlejohn
v. Trammell, 704 F.3d 817, 851–854 (10th Cir. 2013). The closest that the
petitioner could come to succeeding on this sort of theory would be an
argument that inconsistent theories at his sentencing prejudiced him or that
the state withheld materially exculpatory evidence after his sentencing. See,
e.g., Bradshaw, 545 U.S. at 186–188; Dist. Atty’s Ofc. for the Third Judicial Dist.
v. Osborne, 557 U.S. 52 (2009). The petitioner does not allege either of those
two sentencing-related claims—he appears to be focused on the
inconsistencies with the trial—but, even if he did, those claims would be
time-barred for the reasons discussed above.
2.2.3

Brady Violation

To prevail on his claim that there was a Brady violation, the petitioner
must establish that: (1) the newly discovered evidence was favorable as either
exculpatory or impeaching; (2) the government somehow suppressed the
evidence; and (3) prejudice ensued as a result of its suppression. See, e.g.,
United States v. Kimoto, 58 F.3d 464, 474 (7th Cir. 2009) (quoting United States
v. Roberts, 534 F.3d 560, 572 (7th Cir. 2008)); Brady v. Maryland, 373 U.S. 83, 88
(1963). The Court will assume that the first of those factors is satisfied; even
so, the other two are not. The newly discovered evidence does not appear to
have been available for 14 months after the shooting incident, see Jacobson,
2004 WI App 125 at ¶ 7, which itself was not for at least 3 months after the
petitioner’s sentencing in July of 2000. Thus, the newly discovered evidence
could not have been suppressed in the relevant time period because it was
not even in existence. Moreover, as the Court has now reiterated several
times, the newly discovered evidence would not have altered the outcome
of the trial: the Wisconsin Court of Appeals concluded that there would have
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been sufficient evidence to convict the petitioner even if he had not fired a
single shot. Weso, 2002 WI App 292 at ¶ 19. Thus, even if there was
suppression, it did not prejudice the petitioner. Thus, the petitioner’s Brady
violation claim is not viable.
3.

CONCLUSION
For all of these reasons—that the petition is untimely and fails to raise

viable claims—the Court is obliged to deny the petition for a writ of habeas
corpus.
Finally, under Rule 11(a) of the Rules Governing Section 2254 Cases,
“the district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), the petitioner must make a
“substantial showing of the denial of a constitutional right” by establishing
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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). While Rule 11(a) permits a district court to direct the parties to
submit arguments on whether a certificate of appealability should be issued,
additional arguments are not necessary here. The denial of the petition is
two-fold—based upon timeliness and the merits—and both foundations are
solid. No reasonable jurist would disagree with the Court’s determination.
Accordingly,
IT IS ORDERED that the petitioner’s petition for a writ of habeas
corpus (Docket #1) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to the
petitioner’s petition be and the same is hereby DENIED; and
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IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 29th day of January, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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