Simpson v Eckstein et al

Filing 15

ORDER DISMISSING CASE signed by Judge J.P. Stadtmueller on 1/31/2017. 1 Petitioner's Petition for a Writ of Habeas Corpus DENIED. Certificate of appealability as to Petitioner's Petition DENIED. Action DISMISSED with prejudice. 4 Pe titioner's Motion for Leave to Proceed Without Prepayment of the Filing Fee DENIED as moot. 8 Petitioner's Motion for TRO DENIED as moot. 13 Petitioner's Motion to Stay DENIED. (cc: all counsel, via mail to Willie C. Simpson at Green Bay Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIE C. SIMPSON,
Petitioner,

Case No. 17-CV-10-JPS

v.
SCOTT ECKSTEIN,
Respondent.

ORDER

On January 3, 2017, Willie C. Simpson (“Simpson”) filed this petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket #1). In his
petition, which was submitted on a non-standard Section 2254 form, Simpson
states that he is challenging the effect of a sentence imposed by Grant
County, Wisconsin for battery by a prisoner. See State of Wisconsin v. Willie C.
Simpson, Grant County, Case No. 2011-CF-123. In addition to his petition,
Simpson has filed: (1) a motion for leave to proceed in forma pauperis (Docket
#4); (2) a motion for a temporary restraining order (Docket #8); and (3) a
motion to stay this matter pending exhaustion of his state court remedies
(Docket #13).
Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts authorizes a district court to conduct an initial screening of
habeas corpus petitions and to dismiss a petition summarily where “it plainly
appears from the face of the petition…that the petitioner is not entitled to
relief.” This rule provides the district court the power to dismiss both those
petitions that do not state a claim upon which relief may be granted and
those petitions that are factually frivolous. See Small v. Endicott, 998 F.2d 411,
414 (7th Cir. 1993). Upon an initial Rule 4 review of habeas petitions, the
court will analyze whether the petitioner has avoided statute of limitations

bars, exhausted available state remedies, avoided procedural default, and set
forth cognizable constitutional or federal law claims.
As it did with Simpson some five months prior, the Court is compelled
to address the fact that he is the personification of a serial litigant. See
Simpson v. Eckstein, Case No. 16-CV-854 (E.D. Wis. August 30, 2016) (Docket
#20) (the “2016 Screening Order”) (petition denied, Simpson appealed);
Simpson v. Walker et al., Case No. 15-CV-1017 (E.D. Wis. filed Aug. 20, 2015)
(dismissed after voluntary withdrawal of petition) (J. Randa); Simpson v.
Walker et al., Case No. 15-CV-1016 (E.D. Wis. filed Aug. 20, 2016) (dismissed
for failure to exhaust state remedies) (J. Randa); Simpson v. Pollard, Case No.
15-CV-986 (E.D. Wis. filed Aug. 18, 2015) (dismissed as unauthorized
successive petition) (J. Randa); Simpson v. Walker et al., Case No. 15-CV-171
(E.D. Wis. filed Feb. 12, 2015) (dismissed as unauthorized successive
petition); Simpson v. Wis. Dept. Corr., Case No. No. 14-CV-197 (E.D. Wis. filed
Feb. 21, 2014) (J. Griesbach), aff’d, No. 14-2056 (7th Cir. Oct. 23, 2014)
(dismissed for failure to exhaust state remedies); Simpson v. Haines, Case No.
12-CV-410 (E.D. Wis. filed May 12, 2012) (denying petition) (J. Adelman);
Simpson v. Kingston, Case No. 02-CV-1099 (E.D. Wis. filed Nov. 13, 2002)
(denying petition) (J. Adelman); see also Simpson v. Walker, Case No.
11-CV-838-BBC (W.D. Wis. Apr. 1, 2013) aff’d, 527 F. App’x 561 (7th Cir.
2013); Simpson v. Thorpe, 09-CV-532-BBC, 2010 WL 3667003 (W.D. Wis. Sept.
15, 2010); Simpson v. Joseph, 06-CV-200, 2007 WL 433097 (E.D. Wis. Feb. 5,
2007), aff’d, 248 F. App’x 746 (7th Cir. 2007); Simpson v. Greenwood,
06-CV-612-C, 2007 WL 5445538 (W.D. Wis. Apr. 6, 2007).
As explained by previous courts in this District, Simpson is currently
incarcerated at the Green Bay Correctional Institution, where he is serving a

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65-year sentence for sexually assaulting children. See Simpson v. Haines, Case
No. 12-CV-410, Docket #33 at 1 (E.D. Wis. filed May 12, 2012) (denying
petition) (J. Adelman). He was first convicted in the Milwaukee County
Circuit Court in 1997 of second-degree sexual assault of a child under Wis.
Stat. § 948.02(2). The court stayed the resulting 15-year prison sentence and
placed Simpson on probation, which was revoked in 1999 after he molested
a 6-year-old. He was subsequently convicted of two counts of first-degree
sexual assault of a child under Wis. Stat. § 948.02(1) and sentenced to two
consecutive prison terms of 25 years. Next, in 2012, Simpson was convicted
in Dodge County Circuit Court of battery by prisoners, bail jumping and
disorderly conduct in violation of Wis. Stat. §§ 940.20(1), 946.49(1)(b), and
947.01, respectively. See Simpson v. Walker et al., Case No. 15-CV-171, Docket
#9 at 2-3 (E.D. Wis. filed Feb. 12, 2015) (J. Randa). Finally, in 2013, Simpson
was convicted in Grant County Circuit Court of one count of battery by
prisoners and six counts of prisoner throwing/expelling bodily substances in
violation of Wis. Stat. § 946.43(2m)(a). Id.
This case must be dismissed, like that from July 2016, for myriad
reasons. First, on the face of Simpson’s petition, it is not apparent that he
states a cognizable habeas claim. In the Court’s August 30, 2016 order in the
July 2016 case, it found as a ground for dismissal Simpson’s repeated
statements that he was not attacking the validity of a conviction, but rather
the way in which Wisconsin Department of Corrections (“DOC”) policies
affected his good time credit. 2016 Screening Order at 3-4. As the Court
explained, a state prisoner may obtain habeas corpus relief “only on the
ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). “An alternate formulation
of this basic principle is that a habeas corpus petition must attack the fact or
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duration of one’s sentence; if it does not, it does not state a proper basis for
relief under § 2254[.]” Washington v. Smith, 564 F.3d 1350, 1351 (7th Cir. 2009).
Simpson claims to attack the validity of the Grant County conviction,
11-CR-123, but what he actually complains of is the DOC’s application of that
conviction, pursuant to its policies, to deny him early release. See (Docket #1
at 2, 10). Simpson’s petition is silent as to any infirmity in the conviction
itself. See generally id. at 7-11. Thus, as it did in the 2016 Screening Order, the
Court must conclude that he has failed to present a cognizable habeas claim
because his challenge attacks DOC policies, not an actual conviction.1
Even if the claim was cognizable, it would still fail for numerous
reasons. First, assuming the petition has anything to do with the conviction
in 11-CR-123, it is untimely. A state prisoner in custody pursuant to a state
court judgment has one year from the date “the judgment became final” to
seek federal habeas relief. 28 U.S.C. § 2244(d)(1)(A). A judgment becomes
final within the meaning of Section 2244(d)(1)(A) when all direct appeals in
the state courts are concluded followed by either the completion or denial of
certiorari proceedings in the U.S. Supreme Court, or, if certiorari is not
sought, at the expiration of the 90 days allowed for filing for certiorari. See
Ray v. Clements, 700 F.3d 993, 1003 (7th Cir. 2012). A review of the publiclyavailable docket report for 11-CR-123 shows that Simpson’s conviction
became final on January 11, 2013, and his appeal was dismissed on July 24,
2014. See State of Wisconsin v. Willie C. Simpson, Grant County, Case No. 2011CF-123; State v. Willie C. Simpson, Court of Appeals District 4, Case No. 2014-

1

As with the July 2016 petition, Simpson repeatedly and inexplicably states that he is
not attacking a criminal conviction. (Docket #1 at 3-6). The Court has generously overlooked
this as it appears to undermine Simpson’s misguided attempt to avoid application of the
Court’s analysis from the 2016 Screening Order.

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AP-1477. Simpson’s time to file, then, passed in July 2015, long before the
January 3, 2017 filing date of this petition.
In his motion to stay, Simpson makes two arguments to avoid
untimeliness. First, he asserts that the one year statute of limitations does not
apply because his habeas challenge arises out of prison discipline. (Docket
#13 at 1). He is incorrect. Although his battery charge was of a special kind
reserved for prisoners, it was still a felony for which he was convicted by the
Wisconsin courts. See Wis. Stat. § 940.20(1). It was not a punishment imposed
by a prison disciplinary board. Cf. Cox v. McBride, 279 F.3d 492, 493 (7th Cir.
2002).
Second, Simpson contends that “after resolution of the state postconviction [motion], petitioner has one year to file habeas claims to the
federal court[.]” (Docket #13 at 2). He is again incorrect. While the relevant
Wisconsin statute, Section 974.06, provides for collateral review without a
time limitation, it does not restart the statute of limitations for habeas
purposes. See Wis. Stat. § 974.06(1). Graham discussed this very issue:
For the sake of thoroughness, we will cut one final
argument off at the pass. Although we have concluded that §
974.06 review constitutes collateral review, Graham’s § 974.06
petition did nothing to toll the federal habeas statute of
limitations under 28 U.S.C. § 2244(2) (“the time during which
a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of
limitation under this subsection.”). As we noted above,
Graham had one year from the date of the enactment of the
AEDPA, or until April 24, 1997, to file his federal habeas
corpus petition. Graham did not have a properly filed
application for collateral review pending at any time between
the time when his judgment became final and April 24, 1997.
Consequently his § 974.06 motion had no tolling effect
whatsoever on the AEDPA statute of limitations. Graham’s
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habeas petition is untimely and cannot be considered by this
court.
Graham v. Borgen, 483 F.3d 475, 482-83 (7th Cir. 2007). The court also noted
the reasons behind this ruling:
[T]he purpose of enacting the [habeas] limitations
period was “to curb the abuse of the statutory writ of habeas
corpus, and to address the acute problems of unnecessary delay
and abuse in capital cases. It sets a one year limitation on an
application for a habeas writ and revises the procedures for
consideration of a writ in federal court.” H.R. Conf. Rep. No.
104-518, at 111 (1996), reprinted in 1996 U.S.C.C.A.N. 944, 944.
This court has previously held in a similar context that the
federal courts cannot tolerate an interpretation of Wisconsin
law that would render the AEDPA limitations period
ineffective as to all habeas petitioners who were convicted in
Wisconsin state court.
Id. at 482 (quotation omitted); see also De Jesus v. Acevedo, 567 F.3d 941, 943
(7th Cir. 2009). Simpson admits that he has had no Section 974.06 postconviction motion, or any other form of appeal or collateral attack, pending
since July 2014. His instant petition is, therefore, untimely.
Simpson has also failed to exhaust his state court remedies. The district
court may not address the merits of the constitutional claims raised in a
federal habeas petition “unless the state courts have had a full and fair
opportunity to review them.” Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991).
Accordingly, a state prisoner is required to exhaust the remedies available in
state court before a district court will consider the merits of a federal habeas
petition. 28 U.S.C. § 2254(b)(1)(A); Dressler v. McCaughtry, 238 F.3d 908, 912
(7th Cir. 2001) (if petitioner “either failed to exhaust all available state
remedies or raise all claims before the state courts, his petition must be
denied without considering its merits.”). Simpson’s claim arises from the
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DOC’s allegedly improper application of the 11-CR-123 conviction to its early
release determination in September 2014. (Docket #1 at 10). This occurred
after his direct appeal had concluded and therefore the claim could not have
been part of it. As shown by his petition and his motion to stay, Simpson has
not given the Wisconsin courts any opportunity to pass on the claim either
upon direct appeal or a post-conviction motion. See id. at 3-12; (Docket #13).
Relatedly, the Court will deny Simpson’s motion to stay. A stay and
abeyance is appropriate when “the petitioner had good cause for his failure
to exhaust all claims and…the unexhausted claims have some possible merit.”
Dolis v. Chambers, 454 F.3d 721, 724 (7th Cir. 2006) (citing Rhines v. Weber, 544
U.S. 269, 277–78 (2005)); Arrieta v. Battaglia, 461 F.3d 861, 866–67 (7th Cir.
2006) (internal citations omitted). “[W]henever good cause is shown and the
claims are not plainly meritless, stay and abeyance is the preferred course of
action.” Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008) (citations
omitted). The Supreme Court has emphasized that a “stay and abeyance
should be available only in limited circumstances.” Rhines, 544 U.S. at 270.
Simpson’s motion does not even attempt to articulate good cause for his
failure to exhaust; it merely asserts that he is now drafting a post-conviction
motion related to the instant petition for filing in state court. (Docket #13 at
2). Further, Simpson is an experienced litigant and should have been aware
of the need to raise his claim in state court prior to filing this petition.
Without a showing of good cause, the motion to stay must be denied.
Finally, as the Court noted in the 2016 Screening Order, Simpson has
filed multiple habeas petitions litigating his convictions, some of which have
included arguments related to the propriety of his confinement based on the
application of various DOC rules. See, e.g., See Simpson v. Eckstein, Case No.
16-CV-854; Simpson v. Walker et al., Case No. 15-CV-171; Simpson v. Haines,
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Case No. 12-CV-410. Thus, to the extent Simpson is attempting to re-litigate
those issues in this case, his petition is successive and may not be ruled upon
absent approval by the Seventh Circuit. 28 U.S.C. § 2244(b); Nunez v. United
States, 96 F.3d 990, 991 (7th Cir. 1996).
Because Simpson’s claims: (1) are not cognizable under 28 U.S.C. §
2254; (2) are untimely; (3) were not exhausted in Wisconsin state court; and
(4) are successive and unauthorized by the Seventh Circuit, the Court will
dismiss Simpson’s petition and deny his other outstanding motions. (Docket
#4, #8, and #13).
Under Rule 11(a) of the Rules Governing Section 2255 Cases, “the
district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” To obtain a certificate of appealability
under 28 U.S.C. § 2253(c)(2), Simpson 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). Further, when the Court
has denied relief on procedural grounds, the petitioner must show that jurists
of reason would find it debatable both that the “petition states valid claim of
the denial of a constitutional right” and that “the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As the
Court discussed above, no reasonable jurists could debate whether
Simpson’s petition states a cognizable, timely, exhausted, and non-successive
claim under Section 2254. As a consequence, the Court is compelled to deny
a certificate of appealability as to Simpson’s petition.

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Finally, the Court closes with some information about the actions that
Simpson may take if he wishes to challenge the Court’s resolution of this
case. 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 Fed. R. App. P. 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 Fed. R. App. P.
4(a)(5)(A). Moreover, 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
Fed. R. Civ. P. 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 id.
A party is expected to closely review all applicable rules and determine what,
if any, further action is appropriate in a case.
Accordingly,
IT IS ORDERED that the instant petition for a writ of habeas corpus
(Docket #1) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to
Mr. Simpson’s petition be and the same is hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice;

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IT IS FURTHER ORDERED that the petitioner’s motion for leave to
proceed in forma pauperis (Docket #4) be and the same is hereby DENIED as
moot;
IT IS FURTHER ORDERED that the petitioner’s motion for a
temporary restraining order (Docket #8) be and the same is hereby DENIED
as moot; and
IT IS FURTHER ORDERED that the petitioner’s motion to stay
(Docket #13) be and the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 31st day of January, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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