Brown v. Foster

Filing 102

ORDER signed by Chief Judge Pamela Pepper on 9/17/2021 DENYING 101 petitioner's motion to reopen case. (cc: all counsel and mailed to Ennis Brown at Wisconsin Secure Program Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ENNIS LEE BROWN,
Petitioner,
Case No. 16-cv-1497-pp
v.
BRIAN FOSTER,
Respondent.
ORDER DENYING PETITION TO RE-OPEN CASE (DKT. NO. 101)

On May 28, 2019, the court dismissed the petitioner’s 28 U.S.C. §2254
habeas petition without prejudice. Dkt. No. 82. As the court explained, “[t]he
petitioner ha[d] informed this court that he [did] not intend to return to state
court” and exhaust his mixed petition, and “the Seventh Circuit has prohibited
the district courts from ruling on mixed petitions.” Id. at 5. The court
concluded that dismissal was the only option. Id. Three weeks later, the
petitioner filed a motion for reconsideration under Federal Rule of Civil
Procedure 59, asserting that the court committed a manifest error of law in
dismissing the petition. Dkt. No. 85. On November 1, 2019, the court denied
the motion because the petitioner had not demonstrated that the decision
constituted the wholesale disregard, misapplication or failure to recognize
controlling precedent. Dkt. No. 91.
On November 4, 2019, the petitioner filed a notice of appeal, appealing
this court’s orders dismissing the petition and denying the motion for
reconsideration. Dkt. No. 92. On August 18, 2020, the Seventh Circuit Court of
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Appeals construed the petitioner’s notice of appeal as an application for a
certificate of appealability. Dkt. No. 99. Finding no substantial showing of the
denial of a constitutional right, the appellate court denied the petitioner’s
requests for a certificate of appealability and appointment of counsel. Dkt. No.
99. A month later, the mandate issued. Dkt. No. 100.
Seven months later, on April 30, 2021, the court received from the
petitioner a document titled “Petition to re-open case,” asking the Clerk of
Court for “an extention of the Statutory time to file for review under Fedral Rule
of Civil Proceudre 60.” Dkt. No. 101. The petitioner stated,
As the case was ruled upon on November 1, 2019, with a 5 month
g[ra]ce period before the expiration of the ADEPA 15 month period.
It is now April 29, 2021, and the clock has not tolled to prevent the
Chief Judge from reviewing her earlier decision to dismiss the
Petition as a MIXEd Petition. It has now been 18 months since her
ruling. The ADEPA al[l]ows 15 months and after her decision I had
4 months remaining as I sought rel[ie]f in the state court for the
unexhausted claims. See Bro[]wn v. Bo[u]ghton 2020-AP-220-w
Wisconsin Court of Appeals/Supr[eme]Court. I then presented the
remaining claims that were ruled mixed to the High Court of
Wi[]sconsin and was rendered a decision on September of 2020. AS
such, the clock had not expired after the High Court of Wi[s]consin’s
ruling, and there was still four Months remaining on Sept[e]mber
2020.
In March of 2020 the United STates High Court issued an order that
would allow the Petitioner’s seeking Certio[r]ari to have 5 mont[hs]
to do so. Se[e] attached exhibit # 500 adding that time to the Year
under Federal Rule 60, along w[]ith the order for the Clerk to grant
an exten[s]ion, I have fell inside of the time to seek relief on this
issue under newly Discovered evidence and exhaustion of the claims
and grounds in the original and amended petition for habeas
Corpus. I ask the Clerk for an exten[s]ion under Rule 30.4 to allow
me to file the new petition for relief under 2254.
Id. at 1. He asked for an extension of three weeks “as ordered by the High
Court’s March 19, 2020 Corona-virus relief orders.” Id. at 2.
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The petitioner also asked for relief in “the injunctive form for tran[s]fer as
I await the Court’s decision on the re-opening of the case.” Id. at 2. He stated
that he was seeking relief from “an unjust and inhumane envi[ron]ment here at
[Wisconsin Secure Program Facility].” Id. The plaintiff attached to this motion
an order from some unidentified court dated Thursday, March 19, 2020. Dkt.
No. 101-1 at 1-2. There is no caption on the order and no signature.
While it is not clear, the court thinks perhaps the petitioner filed this
motion because he believes that he now has exhausted the claims he had not
exhausted at the time the court dismissed his petition in May 2019. The court
thinks that the petitioner may be asking the court to reopen this case to allow
him to add the now-exhausted claims, or perhaps he is asking for an extension
of 28 U.S.C. §2244(d)(1)’s one-year deadline for filing an original habeas
petition. The court will deny the motion.
The Clerk of Court does not grant extensions of deadlines—judges grant
extensions of deadlines. The court does not know what deadline the petitioner
is asking the court to extend—it dismissed his petition over two years ago, he
appealed and the Seventh Circuit affirmed. The Antiterrorism and Effective
Death Penalty Act (“AEDPA”) does not contain a deadline for extending the time
to reopen a dismissed case or for asking a trial court to reopen a dismissed
case after the court of appeals has affirmed the dismissal. It provides that there
is a one-year deadline for filing a habeas petition under 28 U.S.C. §2254, and
that the one-year deadline begins to run from the latest of four events. AEDPA
says nothing about fifteen months. There is no deadline for the court to extend.
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If the petitioner believes that he now has exhausted some claims that he
would like to bring in a §2254 petition, he may file a new petition, assuming
that less than one year has elapsed since he has exhausted those claims. He
should be aware, however, that courts are required to dismiss claims presented
in a second or successive habeas petition that were presented in a prior
petition, unless the petitioner can show that the new petition relies on a new
rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that previously was unavailable, or the factual predicate for
the claim could not have been discovered previously through the exercise of
due diligence and the facts underlying the claim, if proven and views in light of
the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable factfinder
would have found the petitioner guilty of the underlying offense. 28 U.S.C.
§2244(a), (b). A petitioner who believes that he can demonstrate these things
and wants to file a second or successive petition must file a motion with the
appropriate court of appeals—in this case, the Seventh Circuit—for an order
authorizing the district court to consider the second or successive petition. 28
U.S.C. §2244(b)(3).
The court DENIES the petitioner’s petition to re-open case. Dkt. No. 101.
Dated in Milwaukee, Wisconsin this 17th day of September, 2021.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge
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