Griffin v. Dittmann

Filing 11

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 1/22/2018. 10 Judge Jones' Report and Recommendations ADOPTED. Case DISMISSED as untimely filed. The court declines to issue certificate of appealability. (cc: all counsel, via mail to Keith Griffin)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

KEITH GRIFFIN, JR.,
Petitioner,
v.

Case No. 17-cv-1508-pp

MICHAEL DITTMAN,
Defendant.

ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION (DKT. NO.
10), DISMISSING CASE AND DENYING CERTIFICATE OF APPEALABILITY

On December 6, 2017, Magistrate Judge David E. Jones issued a
recommendation that the court dismiss the petitioner’s habeas petition on
preliminary review. Dkt. No. 10. Judge Jones advised the petitioner that if he
objected to the judge’s recommendation, he needed to file his written objections
within fourteen days of the date he was served with the recommendation. To
date, petitioner has not filed an objection. (It appears that the petitioner now
has been released from custody and is on extended supervision. The petitioner
has not filed a change of address from with the court, nor did he notify the
court of his release.)
Under Fed. R. Civ. P. 72(b), if a party does not object to a magistrate
judge’s report and recommendation, the district court reviews the magistrate
judge’s recommendation for clear error. Fed. R. Civ. P. 72(b); Johnson v. Zema
Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999) (citations omitted). This
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court must decide only whether Judge Jones’ report and recommendation are
clearly erroneous. The court concludes that they are not.
When granting the petitioner leave to proceed without paying the filing
fee, Judge Jones noted that the petitioner appeared to have been filed his
habeas petition more than eleven years after the statute of limitations had run.
Dkt. No. 8 at 3. The petitioner filed a response, arguing that there were
extraordinary circumstances outside of his control that explained why he
missed the statute of limitations deadline; he asserted that his state appellate
counsel had “abandoned” him without informing him of the federal habeas
deadline, and that he was mentally incompetent to seek habeas relief prior to
the statute of limitations deadline. Dkt. No. 9 at 1. He indicated that he did not
become competent until “around July of 2015.” Id. at 2. He stated that he had
been trying to exhaust his state remedies since then. Id. The petitioner also
told Judge Jones that failure to review and grant his petition would result in a
fundamental miscarriage of justice, because no reasonable juror would have
found him guilty without the state court’s alleged errors. Id.
The petitioner filed his federal habeas case on November 2, 2017. Dkt.
No. 1. He appears to have appealed his state judgment and conviction; the
court of appeals ruled against him, he says, in June 2004, and he says his
petition for review was denied in November 2004. Dkt. No. 1 at 3. So the
petitioner filed his federal habeas more than twelve years after his direct appeal
became final. He indicates that he filed a post-conviction motion in September
2015, that the court denied the motion, and that he did not appeal to the
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highest court in the state. Id. at 4-5. He also filed a state habeas petition in
November 2015; that petition was denied in July 2017, and when asked
whether he appealed to the highest court in the state, the petitioner responded
that he was “denied access” to the courts by the DOC. Id. at 5. He filed another
habeas petition in the Wisconsin Court of Appeals; he does not say when he
filed it, but the case number shows it was filed in 2017. Id. at 5-6. He says that
petition was denied on April 3, 2017, and that he did not appeal it to the
highest court. Id. at 6. By the petitioner’s own account, then, he did not file his
petition until over twelve years after the one case in which he had exhausted
his remedies became final.
In his recommendation, Judge Jones considered whether the petitioner’s
explanation for his delay—that he was mentally incompetent to seek habeas
relief until July 2015, and that failure to review and grant his petition would
constitute a miscarriage of justice—provided a basis for “equitably tolling” the
federal habeas statute of limitations. Dkt. No. 10 at 3. He noted that under
Holland v. Florida, 560 U.S. 631 (2010), a court could equitably toll the federal
habeas statute of limitations, but also pointed out that the burden is on the
petitioner to show that there was some extraordinary circumstance that had
prevented him from filing timely. Id., citing Carpenter v. Douma, 840 F.3d 867,
870 (7th Cir. 2016). Judge Jones exercised his discretion, and declined to
apply the equitable tolling doctrine, noting that while the petitioner claimed
that he had not been competent to pursue federal habeas relief until July
2015, he had provided no evidence or proof that his competency ever was at
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issue. Id. at 4. Judge Jones even looked on the Wisconsin Circuit Court Access
web site, and reviewed the docket in the petitioner’s case; he could find no
indication that the petitioner ever had raised his competency in that case. Id.
(This court reviewed the same docket, and comes to the same conclusion.)
Judge Jones found that, without medical records or some other evidence
showing that the petitioner ever was incompetent, the petitioner had not
demonstrated the “extraordinary circumstances” necessary to support
application of the equitable tolling doctrine. Id.
As to the petitioner’s claim that failure to review and grant his petition
would result in a miscarriage of justice because he was actually innocent,
Judge Jones correctly concluded that the petitioner had not provided any
evidence that he did not possess the cocaine with the intent to distribute it.
Without such proof, the petitioner cannot sustain a claim of actual innocent, or
demonstrate a miscarriage of justice.
The court agrees with all of Judge Jones’s conclusions, and finds that his
recommendation that this court dismiss the petition was not clearly erroneous.
The court ADOPTS the recommendation of the magistrate judge to
dismiss the habeas petition on preliminary review and deny a certificate of
appealability. Dkt. No. 10.
The court ORDERS that this case is DISMISSED as untimely filed. The
court DENIES a certificate of appealability. The clerk will enter judgment
accordingly.

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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 thirty (30) days of the entry of
judgment. See Fed. R. of 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 thirty-day deadline. See Fed. R. App. P. 4(a)(5)(A).
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
Rule 59(e) must be filed within twenty-eight (28) days of the entry of
judgment. The court cannon extend this deadline. See Fed. R. Civ. P. 6(b)(2).
Any motion under Rule 60(b) must be filed within a reasonable time, generally
no more than one year after the entry of judgment. The court cannot extend
this deadline. See Fed. R. Civ. P. 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 22nd day of January, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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