Lietz v. Hepp

Filing 24

ORDER signed by Magistrate Judge William E Duffin. IT IS THEREFORE ORDERED that the respondent's 15 motion to dismiss, is granted. The petition and this action are hereby dismissed. (cc: all counsel, petitioner) (asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THADDEUS M. LIETZ,
Petitioner,
v.

Case No. 15-CV-4

RANDY HEPP,
Respondent.
DECISION AND ORDER
On January 5, 2015, Thaddeus M. Lietz filed a petition for a writ of habeas corpus
regarding his convictions in Outagamie County Circuit Court for disorderly conduct
and resisting or obstructing an officer. (ECF No. 1.) The convictions relate to Lietz
surreptitiously stowing away in a stranger’s vehicle for a trip from Outagamie County
to Waukesha County. (ECF No. 16-1, ¶¶ 2-7.) Lietz pled no contest to each offense, each
of which was enhanced under Wisconsin law due to Lietz’s status as a repeat offender.
(ECF No. 16-1, ¶ 13.)
In contravention of Rule 2(d) of the Rules Governing Section 2254 Cases, Lietz
failed to use this court’s standard Section 2254 form or substantially follow the form
appended to the Rules Governing Section 2254 Cases. The matter was initially assigned

to the Honorable Lynn Adelman, who ordered the respondent to answer the petition.
(ECF No. 5.) The petition was subsequently reassigned to this court upon all parties
consenting to the full jurisdiction of a magistrate judge. (ECF No. 4, 10, 11.)
On April 20, 2015, the respondent filed a motion to dismiss. (ECF Nos. 15, 16.)
Lietz responded (ECF No. 19) and the respondent replied (ECF No. 23). The
respondent’s motion to dismiss is now ready for resolution.
The respondent contends that Lietz procedurally defaulted any claim that he
may have regarding his conviction when he failed to file a petition for review with the
Wisconsin Supreme Court within 30 days of the date of the decision from the Wisconsin
Court of Appeals as required by Wis. Stat. § 808.10. Based upon the court’s review of the
record, it appears that the respondent is correct and Lietz’s petition for review was
untimely. However, a petitioner does not procedurally default a claim merely because
a state procedural rule might have barred the state court from considering it. Harris v.
Reed, 489 U.S. 255, 263 (1989); Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). Rather, the
state court must have actually relied upon the rule to reject the petitioner’s claim.
Richardson v. Lemke, 745 F.3d 258 (7th Cir. 2014). The Wisconsin Supreme Court never
addressed the timeliness of Lietz’s petition for review, and thus the fact that it appears
untimely under this court’s calculations cannot support the conclusion that Lietz
procedurally defaulted his claims.

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In assessing procedural default the court looks only to the reason the Supreme
Court gave for dismissing Lietz’s petition for review – his failure to pay the filing fee or
to seek a waiver of that fee. (ECF No. 16-6.) By failing to timely pay or to seek a waiver
of the filing fee, Lietz procedurally defaulted his claims. See Mazariegos v. Humphreys,
2008 U.S. Dist. LEXIS 4275, 16-17 (E.D. Wis. Jan. 22, 2008).
The orderly administration of the criminal justice system depends upon federal
courts respecting the procedural rulings of state courts. Dretke v. Haley, 541 U.S. 386, 388
(2004). As a result, federal courts will entertain procedurally defaulted claims only if the
petitioner demonstrates that there was cause for his procedural default and he suffered
prejudice as a result or, alternatively, the petitioner demonstrates that a miscarriage of
justice would result if the court did not consider his procedurally defaulted claims.
Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). To overcome procedural default on
the miscarriage of justice exception, the petitioner “must demonstrate that he is actually
innocent of the crime for which he was convicted—that is, he must convince the court
that no reasonable juror would have found him guilty but for the errors allegedly
committed by the state court.” Id. at 515 (citing Schlup v. Delo, 513 U.S. 298, 327-29
(1995)).
In an effort to establish cause regarding his procedural default, Lietz alleges that
he never received from the Wisconsin Supreme Court a petition for waiver of fees form.
In rejecting this argument, the Wisconsin Supreme Court stated that the order which it

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sent to Lietz notifying him of the need to pay the filing fee or to request a waiver stated
that a blank petition for waiver of fees was attached to the order. (ECF Nos. 16-8; 16-5.)
Because Lietz has failed to prove by clear and convincing evidence that this factual
determination is not correct, the court must conclude that it is. See 28 U.S.C. § 2254(e)(1).
Even if this court were to accept Lietz’s assertion that he never received the
waiver form from the Wisconsin Supreme Court, this court would nonetheless be
required to conclude that Lietz has failed to demonstrate cause for his default. He does
not explain why the absence of the form prevented him from pursuing his petition for
review. Although Lietz denies having received the waiver form, he does not dispute
that he received the order. In the order the Wisconsin Supreme Court explicitly
informed him that his petition for review would be dismissed if action was not taken
within 10 days. (ECF No. 16-5.) Yet he did nothing. The Supreme Court actually waited
38 days, until September 18, 2015, to finally dismiss his petition. At no time prior to the
dismissal of his petition did Lietz request another copy of the form that the court’s letter
said it had sent to him, nor did he otherwise attempt to comply with the court’s order.
In light of Lietz’s lack of diligence in the face of an explicit warning from the
Wisconsin Supreme Court, the court cannot find that cause exists to excuse his
procedural default. It is unnecessary to hold “a hearing so Lietz may bring forth the
testimony of fifty or more people who have been or are inmates at Winnebago County

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Jail” so the court can learn about the jail’s mail handling practices. (ECF No. 19 at 5.)
Nor does the court find oral argument necessary.
The court may excuse Lietz’s procedural default only if he can demonstrate that
he is actually innocent. This exception to the procedural default rule is limited to the
“extremely rare,” “extraordinary case” where, in light of “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence--that was not presented at trial,” the court finds that “it was
more likely than not that no reasonable juror would have convicted him in light of the
new evidence.” Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003) (quoting Schlup v. Delo,
513 U.S. 298, 324, 327 (1995)).
In an apparent effort to demonstrate his actual innocence, Lietz argues the merits
of his claim. He contends that, because he was on supervision by the Wisconsin
Department of Corrections and living in a halfway-house, he was “in custody” and
entitled to be informed of his Miranda rights prior to any questioning. (ECF No. 19 at 67.) He also argues that the interrogator lied to him about bodily fluids found in a
vehicle, which led to Lietz’s statement being involuntary. (ECF No. 19 at 7.)
Being in “custody” can have different meanings depending upon the context in
which it is used. In the habeas corpus context, a petitioner must be in “custody” in
order for a federal court to be able to consider his petition. 28 U.S.C. § 2254(a). When
used in this context, the term means that petitioners must be “subject to conditions that

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‘significantly restrain …[their] liberty.’” Virsnieks v. Smith, 521 F.3d 707, 717 (7th Cir.
2008) (quoting Jones v. Cunningham, 371 U.S. 236, 243 (1963)). Under this broader
definition, persons on probation, parole, or extended supervision are considered to be
in custody. Id. at 717. It is because of this broader definition that Lietz remains in
custody today, enabling the court to consider his present petition despite the fact that it
appears that he is no longer incarcerated in a correctional institution.
However, in the context of whether a person must be informed of his
constitutional rights prior to interrogation, being in “custody” requires a restraint upon
movement comparable to that associated with formal arrest. United States v. Yusuff, 96
F.3d 982, 987 (7th Cir. 1996) (citing California v. Beheler, 463 U.S. 1121, 1125 (1983)). Lietz
understandably but incorrectly applies the definition of custody applicable in the
habeas corpus context to his Miranda argument. Not only can this argument not support
a claim of actual innocence, but it means that this claim would also fail on its merits.
Likewise, Lietz’s arguments with respect to the absence of evidence of his DNA
in the vehicle in which he was alleged to have stowed away is insufficient to
demonstrate his actual innocence and would fail on its merits. As the Wisconsin Court
of Appeals correctly noted in rejecting Lietz’s direct appeal, “DNA or physical evidence
is not required to prove the crime of disorderly conduct.” (ECF No. 16-1, ¶ 27.) While
DNA evidence is probative of whether a person was present at a particular location, the
absence of such evidence does not conclusively establish that the person had never been

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there. Therefore, presuming that Lietz is correct and DNA testing was actually
conducted in this misdemeanor case in which the suspect confessed to the offense, the
absence of evidence that his DNA was found in the subject vehicle would not establish
his innocence.
More importantly, these arguments are the same as those presented by Lietz in
his direct appeal. (See ECF No. 16-1, ¶¶ 15-27.) They do not address new evidence and
are insufficient to support an actual innocence claim and avoid procedural default. See
Woods v. Schwartz, 589 F.3d 368, 377 (7th Cir. 2009). Accordingly, the court must find
that Lietz procedurally defaulted his claims by failing to properly present them to the
Wisconsin Supreme Court. As a result, this court is barred from considering the merits
of his claims and must grant respondent’s motion to dismiss.
Although now immaterial in light of the court’s conclusion that Lietz has
procedurally defaulted his claims, the court nonetheless finds it appropriate to offer a
few comments regarding the relief he seeks. He asks the court to “set a new precedent
in terms of guidelines and procedures to be used for law enforcement within this type
of scenario.” (ECF No. 19 at 8.) In the context of a petition for a writ of habeas corpus, a
federal court is forbidden from establishing new law. Wright v. Van Patten, 552 U.S. 120,
126 (2008). Additionally, he asks for $100,000.00 in damages for what he believes was a
violation of his constitutional rights. (ECF No. 19 at 11.) “[D]amages are not an available
habeas remedy.” Nelson v. Campbell, 541 U.S. 637, 646 (2004).

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Finally, in accordance with 28 U.S.C. § 2253(c)(2) and Rule 11 of the Rules
Governing Section 2254 Cases, the court finds that Lietz has failed to make a substantial
showing of a denial of a constitutional right and therefore denies him a certificate of
appealability. However, should the petitioner wish to appeal, he may request a
certificate of appealability from the Court of Appeals for the Seventh Circuit.
IT IS THEREFORE ORDERED that the respondent’s motion to dismiss, (ECF
No. 15) is granted. The petition and this action are hereby dismissed. The Clerk shall
enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 10th day of November, 2015.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge
This order and the judgment to follow are final. A dissatisfied party may appeal this court’s decision to
the Court of Appeals for the Seventh Circuit by filing in this court a notice of appeal within 30 days of the
entry of judgment. See Federal Rules of Appellate Procedure 3, 4. This court may extend this deadline if a
party timely requests an extension and shows good cause or excusable neglect for not being able to meet
the 30-day deadline. See Federal Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or amend its judgment under Federal
Rule of Civil Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil Procedure 60(b).
Any motion under Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry of
judgment. The court cannot extend this deadline. See Federal Rule of Civil Procedure 6(b)(2). Any motion
under Federal Rule of Civil Procedure 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. The court cannot extend this deadline. See Federal Rule of
Civil Procedure 6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if any, further action is
appropriate in a case.

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