Griffin v. McKenzie et al

Filing 9

ORDER signed by Judge Rudolph T. Randa on 3/18/2015 DENYING 8 Petitioner's Motion for Reconsideration. The Court declines to issue a certificate of appealability. (cc: via US mail to Gabriel Griffin at Milwaukee House of Correction) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GABRIEL GRIFFIN,
Petitioner,
v.

Case No. 15-C-140

MICHAEL HAFEMANN
Superintendent of the Milwaukee
County House of Corrections,
Respondent.

DECISION AND ORDER
Pro se Petitioner Gabriel Griffin (“Griffin”) filed a motion for
reconsideration of this Court’s Decision and Order and final judgment
dismissing his petition for a writ of habeas corpus without prejudice for
failure to exhaust his state remedies.

Because Griffin’s motion was filed

within 28 days of the entry of final judgment, it is deemed to be a motion
brought pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.
Rule 59(e) requires that the moving party clearly establish a manifest error
of law, or an intervening change in the controlling law, or present newly
discovered evidence. See Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir.
1998).

Griffin cites State ex rel. McMillian v. Dickey, 132 Wis. 2d 266, 277,
392 N.W.2d 453, 456-57 (Wis. Ct. App. 1986) abrogated on other grounds
by State ex rel. Coleman v. McCaughtry, 290 Wis. 2d 352, 714 N.W.2d 900,
907-08 (Wis. 2006), asking that the Court accept his habeas petition.
McMillian holds that when certiorari review is not available, habeas
corpus relief may be the appropriate remedy. McMillian is referring to
state habeas corpus remedies, see e.g. State ex rel. Richards v. Leik, 175
Wis. 2d 446, 453, 499 N.W.2d 276, 278-79 (Wis. Ct. App. 1993), not federal
habeas corpus relief. Griffin has not established a manifest error of law or
any other basis for relief under Rule 59(e) and, therefore, Griffin’s motion
for reconsideration is denied.
The Court also declines to issue a certificate of appealability under
Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts because no reasonable jurist would disagree with this
Court’s procedural ruling. Davis v. Borgen, 349 F.3d 1027, 1028 (7th Cir.
2003)) (setting forth requirements for a certificate of appealability); see also
Evans v. Circuit Court of Cook Cty., Ill., 569 F.3d 665, 666 (7th Cir. 2009)
(certificate of appealability is required for appeal from denial of habeas
corpus petition brought under 28 U.S.C. § 2241 when the custody is the
result of a state court order).
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NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Griffin’s motion for reconsideration (ECF No. 8) is DENIED;
The Court DECLINES TO ISSUE a certificate of appealability; and
Dated at Milwaukee, Wisconsin, this 18th day of March, 2015.
BY THE COURT:

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

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