Simpson v. Pollard

Filing 16

ORDER signed by Judge Rudolph T. Randa on 8/20/2015. 12 Simpson's MOTION to Alter/Amend Judgment GRANTED; 9 Decision and Order and 10 Judgment VACATED; Clerk of Court to file [11-1, 11-2] Amended Petition and supporting brief; 11 Simpson 's MOTION to Amend Petition TERMINATED. Clerk of Court DIRECTED to open two new § 2241 actions and file ECF Nos. 4, 5, 11-1, 11-2 and a copy of this Decision and Order in each action. By 9/18/2015 Simpson must file statement in each action indicating whether he's withdrawing § 2241 petition or consenting to recharacterization as § 2254, or he may file § 2254 petition in each action; failure to comply by the deadline will be deemed withdrawal and actions will be dismissed without further order. (cc: all counsel, via mail to Willie Simpson at Waupun Correctional Institution-with 3 § 2254 forms)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIE SIMPSON,
Petitioner,
-vs-

Case No. 15-C-171

WILLIAM POLLARD,
Warden of Waupun Correctional Institution,
Respondent.

DECISION AND ORDER
This matter is before the Court on pro se Petitioner Willie Simpson’s
(“Simpson”) motions to amend/correct his petition for a writ of habeas
corpus and to alter and amend judgment pursuant to Fed. R. Civ. P. 59(e).
(ECF Nos. 11,12.) By a February 20, 2015, Decision and Order (ECF No.
9), the Court held that although filed pursuant to 28 U.S.C. § 2241,
Simpson’s petition was actually an unauthorized successive § 2254 petition
and subject to dismissal for lack of jurisdiction.
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) “allows every prisoner one full opportunity to seek collateral
review. Part of that opportunity—part of every civil case—is an
entitlement to add or drop issues while the litigation proceeds.” Vitrano v.
United States, 721 F.3d 802, 806 (7th Cir. 2013). (Citation omitted.)

However, if a petitioner wants to amend a petition after dismissal of an
action, he may seek leave to amend under Rule 15(a) after the judgment is
reopened under either Rule 59 or 60. First Nat. Bank of Louisville v. Cont’l
Ill. Nat. Bank & Trust Co. of Chi., 933 F.2d 466, 468 (7th Cir. 1991); Car
Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1111 (7th Cir. 1984). Thus,
the Court begins by addressing Simpson’s Rule 59(e) motion to amend and
alter judgment.
Rule 59(e) permits a court to amend a judgment only if the movant
demonstrates a manifest error of law or fact or presents newly discovered
evidence. See, e.g., Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th
Cir. 2012). “This rule enables the court to correct its own errors and thus
avoid unnecessary appellate procedures.”
quotation marks omitted).

Id. (internal citation and

The decision to grant or deny a Rule 59(e)

motion is entrusted to the “sound judgment” of the district court. Id.
Simpson requests that the Court alter and amend its order to specify
that (1) with respect to § 2241, the limitations of 28 U.S.C. § 2244(b) apply
only to § 2254 petitions according to Magwood v. Patterson, 561 U.S. 320
(2010), and Valona v. United States, 138 F.3d 698 (7th Cir. 1998); and (2)
with respect to the new judgments pronounced in state court cases
11CF123, 11CF220, and 12CF066, Simpson is entitled to one collateral
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attack per judgment. (Rule 59(e) Mot. 1.)
Simpson further states that this petition is a § 2241 collateral attack
on the judgment in 11CF123 (Grant County), challenging the Wisconsin
Department of Corrections’ (“DOC”) execution of the sentence extending his
confinement.

He contends that this Court committed clear error by

grouping the judgments in 11CF123 and 11CF220 (Grant County) and
12CF066 (Dodge County) with his collateral attack challenging the DOC’s
execution of the sentence in 12CF066. (Id. at 3.)
In reviewing Simpson’s petition, the Court described it as listing the
following two grounds for relief:
Ground one alleges Fourteenth Amendment
liberty interest violations arising from application
of Wis. Admin. Code § DOC 303.01(1) and (2) to
his 1999 conviction and the convictions in Dodge
County Circuit Court, case number 12CF066, and
in Grant County Circuit Court case numbers
11CF123 and 11CF220.
Ground two alleges
Fourteenth Amendment liberty interest violations
arising from application of Wis. Admin. Code §
DOC 302.041 to his convictions in Dodge County
1

Wisconsin Administrative Code § DOC 302.04 provides:
(1) The purpose of a custody classification is to determine
the appropriate placement of an inmate in order to regulate
the supervision and movement of inmates among
institutions, and between institutions and community
programs.
(2) Custody classification is determined by assessing the
risk of each inmate regarding all of the following:

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Circuit Court, case number 12CF066, and in
Grant County Circuit Court case numbers
11CF123 and 11CF220.
(Decision and Order, 4-5.)

Without taking into account his motion for

partial dismissal of his claims, which was denied as moot, the summary
was accurate.
However, as noted in the Decision, each separate conviction should
have been the subject of a separate petition. (See id. at 2 n.1.) Moreover,
this Court’s Decision is impacted by the June 22, 2015, Order of the
Seventh Circuit Court of Appeals on Simpson’s appeal from the dismissal
for lack of jurisdiction and denial of a certificate of appealability in his

(a) Assaultive or predatory behavior.
(b) Escape, walk-away, and absconding occurrences.
(c) Violation of inmate disciplinary rules under ch. DOC
303.
(d) Disruption to the orderly processes of an institution.
(e) Participation and progress in program or treatment.
(f) Adjustment and history under community supervision.
(g) Pending legal processes.
(3) The department initiates custody classification at A&E
and changes it by an individualized assessment through the
program review process using factors identified in s. DOC
302.07.

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Western District of Wisconsin 28 U.S.C. § 2241 action, Simpson v. Pollard,
Case No. 14-CV-511.

Specifically, the appeals court denied Simpson’s

request for a certificate of appealability, but it also held that the Eastern
District of Wisconsin court in Simpson v. DOC, Case No. 14-cv-00197, (the
“197 action”), had not warned Simpson, as required by Castro v. United
States, 540 U.S. 375, 377 (2003), that it was recharacterizing that action
as being brought pursuant to § 2254 rather than § 2241. Therefore, the
Western District Court actually had jurisdiction to “entertain” Simpson’s
petition challenging Milwaukee County case 99CF4849 and Grant County
cases 11CF123 and 11CF220.

The appeals court further found that

Simpson had not made a substantial showing of a constitutional right as
to those convictions, which for all practical purposes terminated the
action.
The Court of Appeals order means that due to the failure to warn in
the 197 action, this Court, like the Western District court, erred in
concluding that it lacked jurisdiction over Simpson’s challenges to Grant
County cases 11CF123 and 11CF220 because they were successive
challenges.
Although the Court of Appeals Order does not mention Dodge
County case 12CF66 because it was not included in the Western District
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action, the ruling would theoretically apply to that case, which was also
challenged in the 197 action.

Additionally, Simpson’s conviction and

sentencing in the Dodge County case occurred on August 21, 2014. See
http://wcca.wicourts.gov. Since he had not been convicted or sentenced
when the 197 action was pending, this action with respect to the Dodge
County conviction would also not be successive.
For the foregoing reasons, the Court erred in considering the instant
§ 2241 petition as successive and, therefore, grants Simpson’s Rule 59(e)
motion and vacates the judgment. Given the vacation of the judgment and
order, Federal Rule of Civil Procedure 15(a), which allows amendment
once as a matter of course, applies. Since Simpson meets the criteria for
such an amendment, the Court will direct the Clerk of Court to file
Simpson’s amended petition and supporting brief (ECF Nos. 11-1, 11-2)
and to administratively terminate his motion to amend (ECF No. 11).
In addition, the Court will direct the Clerk of Court to open two new
actions: the first of those actions will be with respect to Grant County case
11CF220, and the second action will be with respect to Dodge County case
12CF66.

The Clerk of Court will also be required to file specific

documents from this action in the two new actions. From now on this
action will relate only to Grant County case 11CF123.
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Because Simpson is in custody pursuant to a state judgment, his
requests for relief are governed by § 2254. See Walker v. O’Brien, 216 F.3d
626, 633 (7th Cir. 2000).

Section 2254 and all associated statutory

requirements apply no matter what statutory label Simpson has given the
cases. Id. “Roughly speaking, this makes § 2254 the exclusive vehicle for
prisoners in custody pursuant to a state court judgment who wish to
challenge anything affecting that custody, because it makes clear that
bringing an action under § 2241 will not permit the prisoner to evade the
requirements of § 2254.” Id.
However, before this Court may recharacterize the § 2241 petitions
as § 2254 petitions, it must notify Simpson that such a recharacterization
may bar a later habeas challenge because 28 U.S.C. § 2244(b) prohibits
“second or successive” § 2254 petitions. See Castro, 540 U.S. at 380.
The Court will afford Simpson an opportunity to withdraw his
§ 2241 petitions or amend them to contain all § 2254 claims he wants to
assert with respect to each challenged conviction in order to avoid a bar on
any additional claims as “second or successive.” No later than September
18, 2015, Simpson must file a statement in each action informing the
Court whether he is withdrawing his § 2241 petition or consenting to the
recharacterization of it as a § 2254 petition; in the alternative, he may file
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a § 2254 petition. Failure to file a response to this Decision and Order, or
a § 2254 petition, in any of the three actions by September 18, 2015, will
be deemed to constitute a withdrawal of the petition, and the Court will
dismiss the action(s)without further order.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Simpson’s motion to alter and amend judgment pursuant to Fed. R.
Civ. P. 59(e) (ECF No. 12) is GRANTED;
The Court’s February 20, 2015, Decision and Order (ECF No. 9) and
Judgment (ECF No. 10) are VACATED;
The Clerk of Court is DIRECTED to file Simpson’s amended
petition and supporting brief (ECF Nos. 11-1, 11-2) and to terminate his
motion to amend (ECF No. 11);
The Clerk of Court is

DIRECTED to open two new actions and

file Simpson’s amended petition and amended brief (ECF Nos. 11-1, 11-2),
his motion for leave to proceed in forma pauperis and prisoner trust
account statement (ECF Nos. 4, 5), and a copy of this Decision and Order
in both actions. The first new action will be deemed a § 2241 petition with
respect to Grant County case 11CF220, and the second new action will be
deemed a § 2241 action with respect to Dodge County case 12CF66. This
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§ 2241 action will relate only to Grant County case 11CF123;
No later than September 18, 2015, Simpson MUST file a
statement in each action informing the Court whether he is withdrawing
his § 2241 petition or consenting to the recharacterization of his § 2241
petition as a § 2254 petition; in the alternative, he may file a § 2254
petition(s) in these actions;
If Simpson does not comply with this Order by September 18,
2015, he will be deemed to have withdrawn his petition(s) and,
without further order, the Court will dismiss the action(s); and
The Clerk of Court is DIRECTED TO INCLUDE three blank
§ 2254 form petitions with Simpson’s copy of this Decision and Order.
Dated at Milwaukee, Wisconsin, this 20th day of August, 2015.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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