Pender v. Eckstein

Filing 17

ORDER signed by Judge J.P. Stadtmueller on 2/23/2018: GRANTING 15 Respondent's Motion to Dismiss; DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; DENYING certificate of appealability; and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Willie D. Pender, Jr. at Green Bay Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIE D. PENDER, JR.,

v.

Petitioner,

Case No. 17-CV-1041-JPS-JPS

WARDEN SCOTT ECKSTEIN,
Respondent.
1.

ORDER

INTRODUCTION
Petitioner Willie D. Pender, Jr. (“Pender”) filed a petition for writ of

habeas corpus on July 27, 2017. (Docket #1). On November 30, 2017,
Magistrate Judge William E. Duffin screened Pender’s petition and found
that he could proceed. (Docket #11). This action was reassigned to this
branch of the Court on December 6, 2017. On January 22, 2018, Respondent
moved to dismiss Pender’s petition. (Docket #15). Pender has not filed an
opposition to Respondent’s motion and the time in which to do so has
expired. (Docket #11 at 3). For the reasons explained below, Pender’s
petition must be dismissed as untimely.
2.

BACKGROUND
In February 2006, Pender pled guilty to one count of second-degree

reckless homicide while armed and one count of being a felon in possession
of a firearm in Milwaukee County Circuit Court case number 2005-CF-3654.
(Docket #16-1 at 1). Pender’s appellate counsel then pursued a no-merit

appeal in the Wisconsin Court of Appeals. (Docket #16-2).1 The Wisconsin
Court of Appeals summarily affirmed Pender’s judgment of conviction on
July 3, 2007. Id. Pender did not file a petition for review with the Wisconsin
Supreme Court. Id.
Almost nine years later, on March 18, 2016, Pender filed a postconviction motion in the Milwaukee County Circuit Court. (Docket #16-3).
That motion was Pender’s first filing in his criminal case since his
convictions had been affirmed. Id. The circuit court denied the motion and
Pender appealed. Id. The Wisconsin Court of Appeals summarily affirmed.
(Docket #16-7). Pender filed a petition for review in the Wisconsin Supreme
Court, which was denied on June 12, 2017. (Docket #16-8 and #16-9).
3.

ANALYSIS
The Court could summarily grant Respondent’s motion in light of

Pender’s non-response. See Civ. L. R. 7(d). In any event, Respondent’s
timeliness argument is indisputably correct. State prisoners seeking federal
habeas review have one year from the date their judgment of conviction
became final to file their petition. 28 U.S.C. § 2244(d)(1). A judgment is
“final” under this rule at “the conclusion of direct review [in the state
appellate courts] or the expiration of the time for seeking such review.” Id.

A “no-merit appeal” is a creature of Wisconsin statute. See Wis. Stat. §
809.32. As the Wisconsin Supreme Court explains,
1

the no-merit appeal procedure seeks to reconcile a defendant’s
right to appeal and right to effective assistance of counsel, with an
attorney’s duty to avoid making frivolous arguments. If a
defendant wishes to appeal a conviction and counsel does not
believe there is any merit to the defendant's arguments, counsel
must follow the procedure set forth in [Section 809.32].
State of Wisconsin v. Buchanan, 828 N.W.2d 847, 856 n.8 (Wis. 2013).

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§ 2244(d)(1)(A); Ray v. Clements, 700 F.3d 993, 1003 (7th Cir. 2012). Pender
had thirty days from July 3, 2007 to seek review in the Wisconsin Supreme
Court. Wis Stat. §§ 809.62(1m), 808.10(1). Because he chose not to, Pender’s
conviction became final on August 3, 2007. His federal habeas petition
needed to be filed by August 3, 2008. Pender’s petition was thus almost nine
years too late.2 Pender has two potential avenues to excuse his tardiness—
the “actual innocence gateway,” Gladney v. Pollard, 799 F.3d 889, 895 (7th
Cir. 2015), and equitable tolling, Socha v. Boughton, 763 F.3d 674, 683 (7th
Cir. 2014)—but he has not asserted either. The Court will not do so for him.
5.

CONCLUSION
For the reasons stated above, Respondent’s motion to dismiss must

be granted. Still, 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), Pender 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

Post-conviction motions, like the one Pender filed in March 2016, can toll
the expiration of the statute of limitations. 28 U.S.C. § 2244(d)(2). They do not,
however, restart the limitations clock. Graham v. Borgen, 483 F.3d 475, 477 (7th Cir.
2007). As applied here, Pender’s one-year filing window closed long before his
post-conviction motion was submitted, so there was no time left for the motion to
toll.
2

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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 discussed above, reasonable
jurists would not debate whether the petition should have been resolved in
a different manner. As a consequence, the Court is further compelled to
deny a certificate of appealability as to Pender’s petition.
Finally, the Court closes with some information about the actions
that Pender 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. 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 Scott Eckstein’s motion to dismiss
(Docket #15) be and the same is hereby GRANTED;
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IT IS FURTHER ORDERED that Petitioner Willie D. Pender, Jr.’s
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
Petitioner Willie D. Pender, Jr.’s petition be and the same is hereby
DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 23rd day of February, 2018.
BY THE COURT:

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

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