Griffin v. Severson

Filing 5

ORDER signed by Judge J.P. Stadtmueller on 3/26/2018: DENYING 1 Petitioner's Petition for Writ of Habeas Corpus as second or successive; DENYING Certificate of Apppealability; and DISMISSING CASE. (cc: all counsel, via mail to Gabriel Griffin at Waukesha County Jail)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GABRIEL GRIFFIN,
Petitioner,
v.

Case Nos. 17-CV-697-JPS
17-CV-870-JPS

SHERIFF ERIC SEVERSON,

ORDER

Respondent.
Petitioner Gabriel Griffin (“Griffin”), proceeding pro se, has filed two
petitions for a writ of habeas corpus in two separate cases pending before
this Court. These actions are related and will be addressed together. Both
petitions are brought pursuant to 28 U.S.C. § 2254 and assert the illegality
of Griffin’s conviction and sentence in a state criminal case.
Rule 4 of the Rules Governing § 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.
Griffin’s petitions challenge his conviction and sentence in
Milwaukee County Circuit Court case number 11-CF-1746. In that case,

Griffin was found guilty, following a jury trial, of criminal trespass to a
dwelling and disorderly conduct. He succeeded in arguing to a Wisconsin
appellate court that his sentence was contrary to Wisconsin law, and his
case was remanded for re-sentencing. He now challenges, in two separate
habeas corpus petitions before this Court, the conviction and sentence
imposed in that case.
In the first petition, Griffin contends that the state failed to disclose
impeachment evidence after his specific request for the same. (Case No. 17CV-697, Docket #1 at 6–7). In the second petition, he asserts a number of
different constitutional issues. (Case No. 17-CV-870, Docket #1 at 6–8). First,
Griffin says that his sentence was vacated on appeal, but precisely the same
sentence was imposed upon remand, in violation of his due process rights.
Id. at 6–7. Second, he alleges that because his sentences were unlawful
(namely too long), the Wisconsin Department of Corrections violated his
Eighth Amendment rights by holding him for longer than what should
have been allowed. Id. at 7–8. Third, Griffin filed a petition for a writ of
mandamus with the Wisconsin Court of Appeals, requesting that the trial
court be ordered to give him a proper sentence. Id. at 8. He claims that the
Court of Appeals’ rejection of that petition was based on an unreasonable
determination of both fact and law. Id. Finally, Griffin asserts without
explanation that the Fifth Amendment’s protection against double jeopardy
was violated by his state prosecution. Id. at 9.
Griffin has already attempted to challenge his conviction from
Milwaukee County Circuit Court case number 11-CF-1746 in previous
federal petitions for a writ of habeas corpus. See Gabriel Griffin v. Timothy
Douma, 13-CV-616-WEC; Gabriel Griffin v. Michael Hafemann, 15-CV-323WCG. The first of Griffin’s prior Section 2254 petitions was dismissed
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without prejudice for procedural default. See (Case No. 13-CV-616-WEC,
Docket #17). The second was dismissed for failure to state a claim. See (Case
No. 15-CV-323-WCG, Docket #7). Because Griffin has had “one ‘full and fair
opportunity to raise a [federal] collateral attack’” on his conviction and
sentence, Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003) (quoting O’Connor
v. United States, 133 F.3d 548, 550 (7th Cir. 1998)), his instant petitions must
be dismissed as “second or successive.” 28 U.S.C. 2244(b).
Section 2244(b) requires petitioners to get permission from the courts
of appeals before filing second or successive petitions in the district courts.
Altman, 337 F.3d at 766. Not every petition counts for purposes of Section
2244(b); for example, petitions that were dismissed for “technical or
procedural deficiencies that the petitioners can rectify before refiling their
petitions” do not count as a prior petition. Id. In those cases, later petitions
are not considered second or successive and can be filed without
permission from the courts of appeals. Id. However, petitions that have
been denied on the merits and petitions that have been denied based on a
procedural default “do count as prior petitions because the petitioner is
incapable of curing the defect underlying the district court’s judgment.” Id.
Here, even if Griffin’s first petition in Case No. 13-CV-616-WEC was
not a sufficient predicate to make his instant petitions “second and
successive,” his second petition in Case No. 15-CV-323-WCG certainly was.
This Court lacks jurisdiction to entertain an unauthorized second or
successive Section 2254 petition. Curry v. United States, 507 F.3d 603, 604–05
(7th Cir. 2007). Griffin has not provided a certification from the Court of
Appeals authorizing the instant petitions, and they must, therefore, be
dismissed.

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Finally, under Rule 11 of the Rules Governing Section 2254
Proceedings for the United States District Courts, “the district court must
issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” That is true even when a movant is appealing
from the dismissal of an unauthorized second or successive motion. See
Sveum v. Smith, 403 F.3d 447, 448 (7th Cir. 2005). To obtain a certificate of
appealability, the 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). Based on the analysis above, reasonable jurists would
not debate whether Griffin’s petitions should have been resolved in a
different manner. As a consequence, the Court is compelled to deny a
certificate of appealability as to Griffin’s petitions.
Accordingly,
IT IS ORDERED that Griffin’s petitions for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (Case No. 17-CV-697-JPS, Docket #1) and (Case
No. 17-CV-870-JPS, Docket #1) be and the same are hereby DENIED;
IT IS FURTHER ORDERED that certificates of appealability as to
Griffin’s petitions (Case No. 17-CV-697-JPS, Docket #1) and (Case No. 17CV-870-JPS, Docket #1) be and the same are hereby DENIED; and
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IT IS FURTHER ORDERED that both actions, (Case No. 17-CV-697JPS) and (Case No. 17-CV-870-JPS), be and the same are hereby
DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 26th day of March, 2018.
BY THE COURT:

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

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