Williams v. Smith

Filing 22

ORDER signed by Judge J.P. Stadtmueller on 8/30/2017: GRANTING 19 Respondent's Motion to Dismiss Petitioner's Petition for Writ of Habeas Corpus; DENYING as moot 10 Petitioner's Motion to Appoint Counsel; DENYING 18 and 21 Petitioner's Motions to Dismiss Respondent's Reply; DENYING a Certificate of Appealability; and DISMISSING action. (cc: all counsel, via mail to Wayne E. Williams at Oshkosh Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WAYNE E. WILLIAMS,
Petitioner,

v.

Case No. 17-CV-411-JPS

JUDY P. SMITH,
Respondent.

ORDER

On April 28, 2017, the Court screened Petitioner’s petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket #8). The Court
noted that the petition, which challenges Petitioner’s 2005 conviction for
second-degree sexual assault of a child, appeared to be nearly ten years
late under the one-year statute of limitations imposed by 28 U.S.C. §
2244(d). Id. at 2–3. Nevertheless, because that limitations period can be
tolled for a number of reasons, the Court found that potential
untimeliness was not a sufficient reason to dismiss the petition at
screening. Id. at 3–4. The Court therefore ordered Respondent to answer or
otherwise respond to the petition no later than June 27, 2017. Id. at 4.
Respondent timely sought and was granted an extension of that deadline
to July 27, 2017. (Docket #16).
On July 27, 2017, Respondent filed a motion to dismiss the petition
as barred by the statute of limitations. (Docket #19). Respondent
submitted evidence showing that Petitioner was convicted in 2005 and
that his direct appeal concluded in 2007. (Docket #20 at 1). As a result, his
time to file a federal habeas petition expired in 2008. Id. at 3; 28 U.S.C. §

2244(d)(1)(A). However, Petitioner did nothing at all to challenge his
conviction until in 2011, when he filed several pro se motions to dismiss
and to expunge his conviction in Wisconsin state court. (Docket #20 at 3).
In Respondent’s view, even if this motion practice constituted a collateral
attack on his conviction, it was untimely and therefore did not toll the
federal limitations period under Section 2244(d)(2). Id. at 4 (citing De Jesus
v. Acevedo, 567 F.3d 941, 943 (7th Cir. 2009)). Finally, nearly six years after
his first foray into state court, he filed the instant petition. Id. at 2. Thus,
according to Respondent, Petitioner’s petition is well out of time. Id. at 4.
Further, Respondent noted that equitable tolling could not save
Petitioner’s untimely petition. Id. That doctrine acts to suspend the
limitations period, but only where the petitioner shows that (1) he has
been diligently pursuing his rights and (2) an extraordinary circumstance
prevented timely filing. Holland v. Florida, 560 U.S. 631, 645–46 (2010).
Respondent points out that Petitioner made no effort in his petition to
claim that he was entitled to equitable tolling. (Docket #20 at 4–5).
Moreover, Respondent says that such a claim would be without merit, as
Petitioner did not file anything for over three years after his conviction
became final. Id. at 5. Respondent posits that this is not adequate diligence
for purposes of equitable tolling. Id.
Attached to Respondent’s motion were copies of the local rules of
this Court relevant to her motion, including Civil Local Rule 7(d), which
warns litigants that “[f]ailure to file a memorandum in opposition to a
motion is sufficient cause for the Court to grant the motion.” Civ. L. R.
7(d); (Docket #19-1 at 6). Nevertheless, Petitioner has filed nothing that
could be described as a response to Respondent’s motion, and the
deadline for doing so has passed. The only thing he has filed since
Page 2 of 6

Respondent’s motion is a two-page document styled a motion to dismiss
Respondent’s reply. (Docket #21). The document is nearly unintelligible,
but the Court gathers that Petitioner believes that Respondent’s response
to his petition was untimely. Id. at 2. Of course, this is untrue, as
Respondent’s motion to dismiss was filed prior to the deadline which the
Court had extended.
In this filing, Respondent also refers to an earlier, nearly identical
motion to dismiss Respondent’s reply to the petition. Id. That earlier
motion does not qualify as a response to Respondent’s July 27 motion, as
it was filed over two weeks prior, on July 7, 2017. (Docket #18). Moreover,
the July 7 filing has no bearing on the issues raised in Respondent’s
motion to dismiss; rather, it simply accuses Respondent of violating the
Court’s response deadline. Id. at 1–2. Again, that did not occur at any
point in this case.
Thus, the Court finds that Petitioner has failed to respond in any
fashion to Respondent’s motion to dismiss and sees fit to grant the motion
on that basis. Civ. L. R. 7(d). Indeed, even were the Court to consider the
motion on its merits, Petitioner has offered no challenge to Respondent’s
proffered facts regarding the course of his prosecution, conviction, and
post-conviction proceedings, nor has he advanced even a single reason
that any tolling doctrine could forgive his extreme dilatoriness in filing the
instant petition. The authorities cited by Respondent demonstrate that
Petitioner has not carried his burden to show that his petition is timely or

Page 3 of 6

that tolling is deserved. For these reasons, the Court finds that the petition
is untimely and must, therefore, be dismissed.1
Under Rule 11(a) of the Rules Governing Section 2254 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), Petitioner 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 a 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’s discussion above makes clear, in light of the facts presented
Before reassignment of this action to this branch of the Court, Petitioner
had filed a motion requesting the appointment of counsel. (Docket #10). The
motion is without merit, as Petitioner’s conclusory allegations that he has no
legal training, that he has only limited law library access, that the case is too
complex for him, or that a lawyer might do a better job, are not valid reasons for
the appointment of counsel. See Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007);
Henderson v. Ghosh, 755 F.3d 559, 565 (7th Cir. 2014). In any event, Petitioner is
under an obligation to comply with Court procedures and deadlines whether or
not he has the aid of a lawyer, so his complete failure to respond to Respondent’s
motion cannot be excused on that basis. Jones v. Phipps, 39 F.3d 158, 163 (7th Cir.
1994); Raven v. Madison Area Technical Coll., 443 F. App’x 210, 212 (7th Cir. 2011)
(“Although we liberally construe pro se filings, we do not enlarge filing
deadlines for them.”) (internal citation omitted). Thus, the fact that he does not
have counsel has no bearing on the disposition of this case. The motion will be
denied as moot.
1

Page 4 of 6

and Petitioner’s failure to oppose Respondent’s motion to dismiss, no
reasonable jurists could debate whether Petitioner’s petition is timely. As
a consequence, the Court is compelled to deny him a certificate of
appealability.
Finally, the Court closes with some information about the actions
that Petitioner 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. 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. Id.
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. 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. 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 Respondent’s motion to dismiss the petition
(Docket #19) be and the same is hereby GRANTED;

Page 5 of 6

IT IS FURTHER ORDERED that Petitioner’s motion for
appointment of counsel (Docket #10) be and the same is hereby DENIED
as moot;
IT IS FURTHER ORDERED that Petitioner’s motions to dismiss
Respondent’s reply (Docket #18 and #21) be and the same are hereby
DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to
Petitioner’s petition be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 30th day of August, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 6 of 6