Kafer v. Smith

Filing 23

ORDER signed by Judge J.P. Stadtmueller on 6/12/2017 DENYING Petitioner a Certificate of Appealability pursuant to 28 U.S.C. § 2253(c). (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THOMAS F. KAFER,
Petitioner,

v.
JUDY P. SMITH,

Case No. 16-CV-353-JPS
7th Circuit Case. No. 17-1948

Respondent.

ORDER

On April 7, 2017, the Court dismissed Petitioner Thomas F. Kafer’s
(“Kafer”) petition upon Respondent’s motion. (Docket #16). Kafer gave
notice of his intent to appeal that decision on May 5, 2017. (Docket #18).
Before a habeas petitioner may take an appeal to the Seventh Circuit,
however, the district court must consider whether to grant the petitioner a
certificate of appealability pursuant to 28 U.S.C. § 2253(c). To obtain a
certificate of appealability, Kafer 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).
Kafer’s petition was dismissed on one ground—untimeliness.
(Docket #16 at 1-2). Kafer argued that various equitable doctrines excused
his tardiness. First, he claimed that the statute of limitations should have
been equitably tolled. Specifically, Kafer maintained the pendency of a
separate state criminal charge prevented him from timely filing his habeas
petition in this Court. The Court rejected that argument because it lacked

any citation to analogous authority and, in light of the clear standard
announced by the Seventh Circuit in Gladney, the separate charge did not
stand in the way of timely filing. Id. at 2-4.
Second, Kafer sought to apply equitable estoppel to his petition for
the same reasons. The Court disagreed with Kafer on the same grounds. Id.
at 5. Finally, Kafer claimed that Respondent had waived any statute of
limitations defense by the lateness of its own motion to dismiss. The Court
noted that waiver was inapplicable because Judge Clevert, to whom this
case had previously been assigned, did not reject the motion as untimely.
Id. Because Kafer’s filings fail to show any disagreement among reasonable
jurists as to the issues he presented, the Court cannot conclude that it
should have resolved the matter differently or that it needs further
development in the Court of Appeals. The Court will, therefore, deny Kafer
a certificate of appealability.
Accordingly,
IT IS ORDERED that Petitioner is DENIED a certificate of
appealability pursuant to 28 U.S.C. § 2253(c).
Dated at Milwaukee, Wisconsin, this 12th day of June, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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