Subdiaz-Osorio v. Clements

Filing 25

ORDER signed by Judge Pamela Pepper on 12/14/2017 DENYING 24 motion to amend/correct. Any future pleadings must be signed by petitioner himself. (cc: all counsel, via mail to Nicholas Subdiaz-Osorio at Kettle Moraine Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
NICHOLAS SUBDIAZ-OSORIO,

Case No. 14-cv-1227-pp

Plaintiff,
v.
MARC CLEMENTS,
Defendant.
______________________________________________________________________________
ORDER DENYING MOTION PURSUANT TO RULE 59(E) TO ALTER AND OR
AMEND JUDGMENT (DKT. NO. 24)
______________________________________________________________________________
On June 22, 2017, the court issued an order denying the petitioner’s
petition for a writ of habeas corpus, denying a certificate of appealability and
dismissing the case. Dkt. No. 22. The court entered judgment the same day.
Dkt. No. 23.
On July 5, 2017, the court received a motion. The court is very
concerned about the way the motion is written. The petitioner did not sign this
motion. Timothy J. Kaprelian, who identifies himself as “the petitioner’s near
friend and the writer of the writ for [the petitioner],” signed it. There is no
indication that the petitioner asked Kaprelian to create this document, or
knows that Kaprelian filed it. The court is aware that many inmates have
assistance from other inmates in preparing legal documents and doing legal
research. But only the party to a lawsuit may sign, even if someone else
researched and typed it for him. Mr. Kaprelian is not the petitioner’s lawyer.
The court has no evidence that Mr. Kaprelian has been appointed the
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petitioner’s guardian. Kaprelian has no authority to sign pleadings in the
petitioner’s case, particularly when the court has no evidence that the
petitioner is even aware of the document having been filed.
Even if the petitioner had filed the document, he would not be entitled to
relief. In order to convince a court to alter or amend a judgment under Fed. R.
Civ. P. 59(e), the movant must “clearly establish[] ‘that the court committed a
manifest error of law or fact, or (2) that newly discovered evidence precluded
entry of judgment.’” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (2013)
(quoting Blue v. Hartford Life & Accident Ins. Co., 698 F.3d 587, 598 (7th Cir.
2012)). “A ‘manifest error’ is not demonstrated by the disappointment of the
losing party. It is the ‘wholesale disregard, misapplication, or failure to
recognize controlling precedent.’” Oto v. Metropolitan Life Ins. Co., 224 F.3d
601, 606 (7th Cir. 2000) (quoting Sedrak v. Callahan, 987 F. Supp. 1063, 1069
(N.D. Ill. 1997)).
The petitioner’s claim that law enforcement tracked his cell phone
without a warrant can arise only under the Fourth Amendment to the
Constitution; that is the provision that prohibits the government from engaging
in unreasonable searches and seizures. As the court stated in its order denying
the petition, both the U.S. Supreme Court and the Seventh Circuit have held
that a petitioner cannot get habeas relief on a Fourth Amendment claim unless
the state court deprived that petitioner of a full and fair opportunity to litigate
it. Dkt. No. 22 at 9. Mr. Kaprelian argues that because the Supreme Court has
yet to decide whether tracking a cell phone without a warrant constitutes an
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unreasonable search under the Fourth Amendment, Stone v. Powell, 428 U.S.
465, 481-82 (1976) and its progeny do not apply. This argument is without
merit. A question of whether government conduct constitutes an unreasonable
search is a Fourth Amendment issue, whether the Supreme Court has
answered the question or not.
Mr. Kaprelian also argues that the court should issue a certificate of
appealability because higher courts need to address the question of whether
the government tracking a person’s cell phone constitutes a violation of the
Fourth Amendment. If this court had granted a certificate of appealability, it
would not have certified the Fourth Amendment question to the Seventh
Circuit. It would have certified its decision that under Stone v. Powell, the
Fourth Amendment issue is not appropriate for habeas relief. The court
concluded in the dismissal order, and continues to believe now, that
reasonable jurists would not find the court’s decision on that issue incorrect or
debatable.
And though it is beside the point, the court notes that the very question
the petitioner sought to raise in his petition is pending before the United States
Supreme Court in Carpenter v. United States, Case No. 16-402, an appeal from
a decision by the Sixth Circuit Court of Appeals. The Supreme Court heard oral
argument on November 29, 2017. If the Supreme Court decides that cell phone
tracking violates the Fourth Amendment, and if it makes that decision
retroactive, the petitioner—signing his own pleadings—may ask the Seventh
Circuit for permission to file a second or successive petition.
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The court DENIES Timothy Kaprelian’s motion to alter or amend
judgment. Dkt. No. 24. The court ORDERS that any future pleadings the
petitioner may wish to file must be signed by the petitioner.
Dated in Milwaukee, Wisconsin this 14th day of December, 2017.
BY THE COURT:

_________________________________
HON. PAMELA PEPPER
United States District Judge

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