Campbell v. Hepp
Filing
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DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that the respondent's 10 Motion to Dismiss is GRANTED and the petitioner's petition for writ of habeas corpus is DENIED. IT IS FURTHER ORDERED that this action be and hereby is DISMISSED. IT IS ALSO ORDERED that a certificate of appealability shall not issue. (cc: all counsel, via US mail to Petitioner) (blr)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GERALD A. CAMPBELL,
Petitioner,
v.
Case No. 17-CV-1772
RANDALL HEPP,
Respondent.
DECISION AND ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
Gerald A. Campbell, a prisoner in Wisconsin custody, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. On February 9, 2001, Campbell pled no contest to two counts
of third-degree sexual assault. (Habeas Petition at 2, Docket # 1.) Campbell was sentenced
to ten years on count one, consisting of five years of initial confinement followed by five
years of extended supervision. (Id.) On count two, the circuit court imposed and stayed a
sentence of five years of initial confinement and five years extended supervision and placed
Campbell on probation, consecutive to count one. (Id.) Campbell alleges that his conviction
and sentence exceeds the maximum allowed by statute. The respondent has filed a motion
to dismiss the habeas petition as untimely. (Docket # 10.) For the reasons stated below, the
respondent’s motion to dismiss is granted and the petition for writ of habeas corpus will be
denied and the case dismissed.
BACKGROUND
Campbell challenges his judgment of conviction for two counts of third degree sexual
assault. The conviction stems from an incident in 2001 where Campbell was charged with
having sexual intercourse with two girls under the age of sixteen. (State v. Campbell, Appeal
No. 2016AP1419 (Wis. Ct. App. July 25, 2017) at 2, Ex. 2 to Resp. Br., Docket # 11-2.)
In 2003, Campbell’s appellate counsel filed a non-merit report and Campbell filed a
response to the no-merit report. (Id.) Campbell argued that he could not be guilty of the
crimes because he did not know the ages of the victims and the circuit court relied on
inaccurate information at sentencing. (Id.) On August 14, 2003, the court of appeals
affirmed Campbell’s conviction. (Ex. 3 to Resp. Br. at 9, Docket # 11-3.) Campbell did not
file a petition for review with the Wisconsin Supreme Court. (Docket # 1 at 3, Docket # 11
at 2.)
Then, in 2006 and in 2008, Campbell’s extended supervision was revoked. (Docket #
11-3 at 7–9.) On December 15, 2008, because of the revocation, Campbell was reconfined
for the maximum amount of time available, which was more than three years. (Id. at 6.) On
July 22, 2009, Campbell filed another appeal with the court of appeals. (Ex. 4 to Resp. Br. at
1, Docket # 11-4.) Campbell’s counsel filed a no-merit report and on September 1, 2010, the
court of appeals found no arguable merit to any issue that could be raised on appeal and
affirmed the postconviction order. (Ex. 5 to Resp. Br., Docket # 11-5.) Campbell did not file
a petition for review by the Wisconsin Supreme Court. (Docket # 11-4 at 1.)
On May 10, 2016, Campbell filed a petition for redress in the circuit court. (Ex. 6 to
Resp. Br., Docket # 11-6.) Campbell argued that his sentence exceeded the maximum
allowed by statute. (Id.) The circuit court rejected his claim on May 17, 2016, and on July
28, 2017, the court of appeals also rejected Campbell’s claim that his sentence exceeded the
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maximum allowed by statute. (Docket # 11-6 and Docket # 11-2.) On August 25, 2017,
Campbell filed a petition for review by the Wisconsin Supreme Court. (Ex. 7 to Resp. Br.,
Docket # 11-7.) The court denied his petition on November 15, 2017. (Ex. 8 to Resp. Br.,
Docket $ 11-8.) Campbell filed this petition for a writ of habeas corpus with the Eastern
District of Wisconsin on December 13, 2017. (Docket # 1 at 13.)
ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254, governs this case. Under AEDPA, habeas petitions challenging state court
confinement are subject to the statute of limitations set forth in 28 U.S.C. § 2244. That
section provides that “[a] 1–year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28
U.S.C. § 2244(d)(1). Additionally, the statute specifies when the one-year limitations period
begins to run, and also provides that the period of limitations is tolled while certain state
proceedings are pending.
Specifically, the statute provides as follows:
The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
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(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence.
(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.
28 U.S.C. § 2244(d).
Here, Campbell does not argue that he was prevented from filing his habeas petition
due to State action. He is not asserting a newly recognized right. He also does not claim that
his petition rests on newly discovered facts. See 28 U.S.C. § 2244(d)(1)(B)-(D). Accordingly,
Campbell’s claim falls under 28 U.S.C. § 2244(d)(1)(A).
Campbell sought direct review of his conviction pursuant to Wis. Stat. § 974.02. The
Wisconsin Court of Appeals affirmed his conviction on August 14, 2003 and Campbell did
not seek discretionary review in the Wisconsin Supreme Court. Because Campbell did not
appeal to Wisconsin’s highest court, his judgment became final when his time for seeking
review with the Wisconsin Supreme Court expired. Gonzalez v. Thaler, 565 U.S. 134, 150
(2012). Pursuant to Wis. Stat. § 808.10, a petition for review must be filed with the clerk of
the Supreme Court within thirty days of the date of the Court of Appeals’ decision. Thus,
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Campbell’s judgment became “final” on September 15, 2003 (because the thirty-day
deadline fell on Saturday, September 13, 2003, Campbell’s judgment became final on the
next business day). Additionally, because Campbell did not seek discretionary review in the
Wisconsin Supreme Court and because the United States Supreme Court can only review
judgments of either a state court of last resort or of a lower state court if the state court of
last resort denied discretionary review, the ninety-day period for seeking certiorari in the
United States Supreme Court is not incorporated into the time period for determining when
Campbell’s judgment became final. Gonzalez, 565 U.S. at 154.
Accordingly, under 28 U.S.C. § 2244(d)(1)(A) the one-year clock commenced for
Campbell on September 16, 2003. See Fed. R. Civ. P. 6(a)(1). This means that Campbell had
to have filed his federal habeas petition on or before September 16, 2004. Campbell did not
do so. Instead, Campbell filed his federal habeas petition on December 13, 2017, more than
thirteen years after the statutory deadline. While Campbell filed two post-conviction
motions in 2009 and 2016, he did not file the motions until after the one-year statute of
limitations for federal § 2254 petitions had expired. While a properly filed motion for postconviction relief in state courts tolls the one-year habeas statute of limitations, 28 U.S.C. §
2244(d)(2), state motions for collateral relief do not give rise to a second one-year limitations
period after the first has expired. See Teas v. Endicott, 494 F.3d 580, 581 (7th Cir. 2007)
(“Nothing in § 2244(d) implies that the time is reopened if the state court engages in
multiple rounds of review that it calls ‘direct.’”). Thus, Campbell’s habeas corpus petition is
untimely.
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The analysis, however, does not end here. The doctrine of equitable tolling can
excuse an untimely filed habeas petition. Equitable tolling is granted “sparingly” and only
when extraordinary circumstances far beyond the litigant’s control prevented timely filing.
Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir. 2010). In deciding whether the AEDPA
limitations period should be equitably tolled, the court must determine that (1) the petitioner
“has pursued his rights diligently” and (2) “extraordinary circumstances beyond his control
stood in the way of the timely filing of his petition.” Id. A litigant seeking equitable tolling
bears the burden of establishing these two elements. Holland v. Florida, 130 S.Ct. 2549, 2566
(2010); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
The Supreme Court has also held that AEDPA’s statute of limitations can also be
overcome by a showing of actual innocence. See McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).
To invoke the actual innocence exception to AEDPA’s statute of limitations, a petitioner
“‘must show that it is more likely than not that no reasonable juror would have convicted
him in the light of the new evidence.’” Id. at 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327
(1995)). Campbell does not attempt to show that either exception applies to his case. Thus,
neither equitable tolling nor actual innocence excuses his untimely petition.
CERTIFICATE OF APPEALABILITY
According to Rule 11(a) of the Rules Governing § 2254 Cases, the court must issue
or deny a certificate of appealability “when it enters a final order adverse to the applicant.”
A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a
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substantial showing of the denial of a constitutional right, the petitioner must demonstrate
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.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893, and n. 4).
When issues are resolved on procedural grounds, a certificate of appealability
“should issue when the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its procedural
ruling.” Id. Each showing is a threshold inquiry; thus, the court need only address one
component if that particular showing will resolve the issue. Id. at 485.
For the reasons set forth in this decision denying Campbell’s habeas petition, none of
his claims warrant a certificate of appealability. The statutory timeliness of Campbell’s
petition is a straightforward issue, and I do not believe that a reasonable jurist would find it
debatable whether this Court erred in resolving this procedural question. Because this
finding alone is sufficient grounds to deny a certificate of appealability, I need not determine
whether the petition states a valid constitutional question that jurists of reason would find
debatable. Consequently, I will deny Campbell a certificate of appealability.
Campbell retains the right to seek a certificate of appealability from the Court of
Appeals pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure.
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ORDER
NOW, THEREFORE, IT IS ORDERED that the respondent’s motion to dismiss
(Docket # 10) is GRANTED and the petitioner’s petition for a writ of habeas corpus is
denied.
IT IS FURTHER ORDERED that this action be and hereby is DISMISSED.
IT IS ALSO ORDERED that a certificate of appealability shall not issue.
FINALLY, IT IS ORDERED that the Clerk of Court enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 13th day of November, 2018.
BY THE COURT:
s/Nancy Joseph____________
NANCY JOSEPH
United States Magistrate Judge
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