Nelson v. State of Wisconsin

Filing 35

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 3/3/2020 GRANTING 30 respondent's motion to dismiss. Petitioner's habeas petition DISMISSED as time-barred under 28 USC §2244(d). The court DECLINES to issue certificate of appealability. Clerk of Court to substitute Steven R. Johnson for Brian Foster as respondent. (cc: all counsel, via mail to David Nelson at Milwaukee Secure Detention Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DAVID DARNELL NELSON,
Petitioner,
v.

Case No. 18-cv-220-pp

STEVEN R. JOHNSON1,
Respondent.

ORDER GRANTING RESPONDENT’S MOTION TO DISMISS (DKT. NO. 30),
DISMISSING CASE UNDER 28 U.S.C. §2244(d) AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

On April 26, 2017, the petitioner, who represents himself, filed a petition
for a writ of habeas corpus in the Western District of Wisconsin, challenging his
2012 conviction in Milwaukee County Circuit Court for second-degree sexual
assault of a child. Dkt. No. 1. Judge Peterson—to whom the case was originally
assigned—screened the petition and questioned whether the petitioner had
properly presented his claims to the state courts. Dkt. No. 12 at 3. He ordered
the respondent to respond within sixty days. Id. After an extension of time, the

When the petitioner filed his petition, he was at Waupun Correctional
Institution. A check of Wisconsin’s Inmate Locator reveals that the petitioner
currently is in custody at the Milwaukee Secure Detention Facility, WISCONSIN
DEP’T OF CORRECTIONS, available at https://appsdoc.wi.gov_/lop/home.do (last
visited Feb. 21, 2020). Steven R. Johnson is the warden of that institution.
https://doc.wi.gov/Pages/OffenderInformation/AdultInstitutions/MilwaukeeSe
cureDetentionFacility.aspx (last visited Feb. 21, 2020). Under Rule 2(a) of the
Rules Governing Section 2254 Cases and Fed. R. Civ. P. 25(d), the court has
updated the caption to reflect the appropriate respondent, and will direct the
clerk to update the docket.
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respondent filed a motion to transfer the case to the Eastern District of
Wisconsin. Dkt. No. 21. Judge Peterson granted that motion and on March 13,
2018, the clerk’s office assigned the case to this court. On August 13, 2018,
the respondent filed a motion to dismiss, arguing that the petition was
untimely and that the petitioner had not exhausted his state remedies. Dkt.
No. 30. The court will grant the motion and dismiss the case, and it declines to
issue a certificate of appealability.
I.

Background
A.

State Case

On March 17, 2012, the petitioner was charged in Milwaukee County
Circuit Court with second-degree sexual assault of a child. Dkt. No. 31-2 at 1;
see also State of Wisconsin v. David D. Nelson, Milwaukee County Case
Number 2012CF001222, available at https://wcca.wicourts.gov/. Less than a
week later, the petitioner appeared with attorney Michael Backes and waived
his preliminary hearing. Id. Five days later, the petitioner pled not guilty. Id. At
a scheduling conference on April 26, 2012, the trial court set a change-of-plea
hearing for May 10, 2012. Id. Attorney Michael Backes appeared at the May 10
hearing. Id. Although the petitioner was in custody, he did not appear. Id. The
court adjourned the plea/sentencing hearing to May 15, 2012. Id. At the May
15 hearing, the court accepted the petitioner’s guilty plea and found the
petitioner guilty. Id. The court imposed a term of three years’ incarceration
followed by two years of extended supervision to be stayed if the petitioner
completed a three-year probation term. Id. The court entered judgment on May
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22, 2012. Id. The docket reflects that in February of 2014, the court revoked
the petitioner’s probation. Id.
In August of 2014, the petitioner—representing himself—filed a motion
for sentence credit. The state court denied the motion the same day. Id. The
state court docket shows that after that August 14, 2014 motion for sentencing
credit, the only other document the petitioner filed was a letter in December
2017. Id.
B.

Federal habeas petition

The petitioner filed this habeas petition on April 26, 2017 in the Western
District of Wisconsin. Dkt. No. 1. The petitioner indicated that he had pled
guilty to the charged crime of second-degree sexual assault, but explained that
“the judge threatened to send me to prison for 60 years on 5-15-2012 so I
didn’t understand my rights I didn’t want to go to prison for 60 years so I sign
some paper I didn’t know or understand and I found out that I sign[ed] a plea
of 5 years = 3 in 2 out.” Dkt. No. 1 at 2. In response to the question on the
petition that asked if he appealed from the conviction, the petitioner
responded, “I don’t know but maybe not but I wanted to if I knew my rights at
the time. I’m mentally ill. I take medication befor[e] I got convicted.” Id.
As Judge Peterson wrote in his August 23, 2017 screening order, the
petition “appears to raise three grounds for relief: (1) [the petitioner] is actually
innocent; (2) his plea was not knowing and voluntary; and (3) his trial counsel
was ineffective—his attorney ‘did not speak up for [him].’” Dkt. No. 12 at 2
(citing dkt. no. 1 at 7). Judge Peterson observed that the petitioner had filed “a
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list of claims he wishes to bring in this case” but that those claims “concern[ed]
conditions of confinement and are not properly raised in a petition for a writ of
habeas corpus.” Id. at 3. Judge Peterson further noted “a few potential
problems with [the petitioner’s] petition.” Id. While noting that the petitioner
had not exhausted his state-court remedies, Judge Peterson allowed him to
proceed past screening based on his claim of actual innocence. Id. at 4-5.
Judge Peterson advised the petitioner that “he will likely have to demonstrate
cause and prejudice to maintain this action.” Id. at 5.
The respondent filed for an extension of time to answer, dkt. no. 19, and
later a motion to transfer to the Eastern District of Wisconsin, dkt. no. 21.
Judge Peterson granted the motion to transfer on February 9, 2018, citing the
fact that the petitioner was sentenced in the Eastern District of Wisconsin and
was in custody in the Eastern District of Wisconsin. Dkt. No. 22 at 1. This
court received the case on March 13, 2018. At the time of transfer, the
petitioner had a pending motion to appoint counsel. Dkt. No. 17. This court
issued an order on June 8, 2018 denying without prejudice the petitioner’s
motion for counsel, informing him that the court would not consider appointing
counsel unless he provided information showing that he had tried to find a
lawyer on his own. Dkt. No. 27. The respondent filed his motion to dismiss on
August 13, 2018. Dkt. No. 30.
C.

Respondent’s Motion to Dismiss, Dkt. No. 30

The respondent argues that the petitioner filed his petition after the oneyear statute of limitations had elapsed. Dkt. No. 31 at 2 (citing 28 U.S.C.
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§2244(d)(1)(A)). He recounted that the circuit court had sentenced the
petitioner on May 15, 2012 and that because the petitioner had not filed a
direct appeal, his conviction became final twenty days after his sentencing—
that is, on June 4, 2012. Id. at 3. The respondent contends that the petitioner’s
one-year period for filing for federal habeas relief expired on June 4, 2013. Id.
The respondent argued that the petitioner’s August 7, 2014 motion for
sentence modification did not toll the limitations period because it already had
expired and argued that the court should not equitably toll the limitations
period. Id. at 4. The respondent also urged the court to dismiss the petition
because the petitioner had not exhausted the remedies available to him in state
court. Id. at 5.
On August 28, 2018, the petitioner filed a one-page, handwritten letter
asking the court to dismiss the respondent’s motion to dismiss. Dkt. No. 32. He
argued that the respondent “ha[d] not been responsible and did not respond to
Hon. Pamela Pepper the United State district Judge to extend its deadline by
30 days to August 13, 2018 dated the 11th day of July, 2018.” Id. The
petitioner wrote:
I respectfully ask the Judge . . . accept my motion to drop all
charge[s] against me for second degree of sexual assault of a child.
Because in my discovery I had not use[d] any force, threat, or
violence and the victim admit she lie to me about her age and she
never said I raped her. She said I was a good guy. I also was taking
medication for my mental health disorders at the time. I should have
never got charge with the crime. The opposition is in charge of the
movements in the Department of Corrections. I can’t get my
discovery, so can you please get my discovery and investigate
yourself.
Id.
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About a month later, the petitioner filed a second letter. Dkt. No. 33. This
letter stated that
I am mentally ill and my plea was coerced and officers failed to read
me my rights. If I was not mentally ill I would have known how and
when to file a statutory one-year period of limitation for seeking
federal habeas corpus review. I have many mental disorders and
learning disability. My Attorney Michael J. Backes was awair that I
was not educated at the time of my conviction and the prosecuting
agency Attorney Paul Leonard Tiffin was awair that I was mentally
ill and take medication but they did not care about my illness or and
disorder. If I was smart or intelligent and did not have mental
disorders I would have know my rights and I would have know how
much time I have to file a writ of habeas corpus. I didn’t know and
my Attorney Michael J. Backes job was to do all these thing for me
if he knew it was benefitual for me. But my Attorney did not
represent me as a Attorney supost to do. I didn’t know what waive
is and I did understand anything that was going on. I did not know
how to exhaust my state court remedies I was mentally ill and my
Attorney job and duty to exhaust my state court remedies because I
was mentally ill. How can a mentally ill person or citizen exhaust his
or her state court remedies or file a writ of habeas corpus at the
correct time, day or year while mentally unstable or sick. I tried to
contack a Attorney because I cant represent myself under my
mentally ill disorder or conditioning The Milwaukee County court
staffs know I was mentally ill and taking medication they all did me
wrong I want justic please.
Id. (spelling errors in original).
Attached to the petitioner’s letter are three documents. Dkt. No. 33-1.
The first document is an August 29, 2018 letter from the law firm of Piccione,
Keeley & Associates, Ltd. in Illinois. Dkt. No. 33-1 at 1. The letter shows that
the petitioner contacted Attorney John J. Piccione about representing him in
this case. Id. The letter indicates that Attorney Piccione was not able to
represent the petitioner. Id. The next two pages are the petitioner’s letter to the
lawyer, asking for representation. Id. at 2-3.

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II.

Analysis
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

instituted a one-year statute of limitations for petitioners seeking federal
habeas relief. 28 U.S.C. §2244(d)(1). The one-year period begins to run from the
latest of the following four events
(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 law of the
United States is removed, if the applicant was prevented from filing
by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has been
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.
28 U.S.C. §2244(d)(1)(A)-(D). The petitioner has not argued that any state
action prevented him from filing this habeas petition. He has not argued that
he is asserting a right newly recognized by the Supreme Court. He has not
asserted that his habeas claims rely on newly discovered evidence. That leaves
28 U.S.C. §2244(d)(1)(A), which provides that the one-year limitations period
begins to run from the date the petitioner’s conviction became final by the
conclusion of direct review or the expiration of the time for seeking such
review.

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The petitioner did not file a direct appeal to the Wisconsin Court of
Appeals. Under Wis. Stat §809.30(2)(b), the petitioner was required to file a
notice of intent to appeal “[w]ithin 20 days after the date of sentencing or final
adjudication”—that is, by June 4, 2012. The petitioner did not file a notice of
intent to appeal within that twenty days; he did not file a petition for review at
all. That means that his conviction became “final”—and his one-year
limitations period began to run—on June 4, 2012. See Gonzalez v. Thaler, 565
U.S. 134, 150 (2012) (“with respect to a state prisoner who does not seek
review in a State’s highest court, the judgment becomes “final” under
§2244(d)(1)(A) when the time for seeking such review expires[.]”). The petitioner
had one year, until June 4, 2013 to file his federal habeas petition. The
petitioner did not file this petition until April 26, 2017—almost four years later.
AEDPA’s one-year limitation period can be “tolled,” or paused, in certain
circumstances. AEDPA has a statutory provision for “tolling” the one-year
clock: “[t]he time during which a properly filed application for State postconviction 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)(2). The provision does not help the
petitioner because he did not properly file any applications for post-conviction
or collateral review before the one-year limitations period expired—before June
4, 2013. Over a year after the petitioner’s one-year clock ran out—in August of
2014—the petitioner filed a motion for sentence modification in Milwaukee
County Circuit Court. But post-conviction motions filed after the one-year
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period expires “ha[ve] no tolling effect whatsoever on the AEDPA statute of
limitations.” Graham v. Borgen, 483 F.3d 475, 482-83 (7th Cir. 2007).
A court may invoke the doctrine of equitable tolling where a petitioner
shows “(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010). “Equitable tolling is an
extraordinary remedy and so ‘is rarely granted.’” Obriecht v. Foster, 727 F.3d
744, 748 (7th Cir. 2013) (quoting Simms v. Acevedo, 595 F.3d 774, 781 (7th
Cir. 2010)). “A petitioner bears the burden of establishing both elements of the
Holland test; failure to show either element will disqualify him from eligibility
for tolling.” Mayberry v. Dittman, 904 F.3d 525 529-30 (7th Cir. 2018) (citing
Menominee Indian Tribe of Wis. v. United States, ___U.S.___, 136 S.Ct. 750,
755-56 (2016)).
“The realm of equitable tolling is a highly fact-dependent area in which
courts are expected to employ flexible standards on a case-by-case basis.”
Socha v. Boughton, 763 F.3d 674, 683 (7th Cir. 2014) (internal quotations
omitted). While equitable tolling is “rare” and “‘reserved for extraordinary
circumstances far beyond the litigant’s control that prevented timely filing[,]’”
id. (quoting Nolan v. United States, 358 F.3d 480, 484 (7th Cir. 2004)), a
district court must “evaluate the circumstances holistically, considering ‘the
entire hand that the petitioner was dealt’ rather than taking each fact in
isolation.” Gray v. Zatecky, 865 F.3d 909, 912 (7th Cir. 2017) (quoting Socha,
763 F.3d at 686)). A petitioner must show more than just that his
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circumstances “may have made it more difficult for him to file a petition for
habeas corpus[.]” Carpenter v. Douma, 840 F.3d 867, 873 (7th Cir. 2016).
While the petitioner did not specifically mention the doctrine of equitable
tolling, the court believes that he is arguing that his mental illness constituted
an “extraordinary circumstance” that prevented him from timely filing his
petition. The court will evaluate that claim under the equitable tolling doctrine.
As to the first Holland factor, the state court docket and the record in
this case show that the petitioner has not diligently pursued his rights. The
petitioner did not appeal his conviction; he did not tell the court of appeals that
his guilty plea was not knowing or voluntary. Nor did he tell the court of
appeals that his trial counsel was ineffective. He did not file a habeas petition
or a motion for post-conviction relief in state court in the two years or so after
his conviction.
The petitioner blames this fact on his counsel; he says he didn’t know
how much time he had to file for a writ of habeas corpus “and my attorney
Michael J. Backes was to do all these thing[s] for me if he knew it was
beneficial for me. But my attorney did not represent me as an Attorney
supos[sed] to do.” Dkt. No. 33 at 1. The petitioner says that his failure to
appeal was his lawyer’s fault, but he doesn’t explain why. He doesn’t say
whether his lawyer explained his appeal rights to him, or whether he asked his
lawyer to file an appeal for him. He doesn’t assert that his lawyer blew the
appeal deadline by accident, or deliberately refused to file an appeal despite

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being asked. He indicated only that he was suffering from mental illness and
that his attorney didn’t tell him to appeal or file a motion. Dkt. No. 1 at 8.
Even if the petitioner could identify a mistake that his attorney made, “a
‘garden variety claim of attorney negligence’ or ‘excusable neglect’ is
insufficient” to warrant equitable tolling. Obriecht, 727 F.3d at 749 (quoting
Holland, 560 U.S. at 652). “‘A lawyer’s ineptitude,’ such as his failure to meet a
filing deadline . . . is garden variety and ‘does not support equitable tolling.’” Id.
(quoting Lee v. Cook Cty., 635 F.3d 969, 972-73 (7th Cir. 2011)).
Nor has the petitioner explained why it took him over two years from his
May 2012 conviction to file his motion for a sentence modification in state
court. The petitioner did nothing to pursue his rights for fifteen months after
he was sentenced. Nor does he explain why he took no action between August
2014, when the state court denied his motion for a sentence modification, and
April 2017 when he filed this federal habeas petition. Again, almost two and a
half years elapsed without the petitioner taking steps to pursue his rights.
Holland does not require a petitioner to show “maximum feasible diligence” but
it does require a petitioner to show “reasonable diligence.” Holland, 560 U.S. at
653. The petitioner has not satisfied the first Holland factor—he has not shown
that he was diligently pursuing his rights.
Because a petitioner must show both elements of the Holland test to
warrant equitable relief, Carpenter, 840 F.3d at 870, the court’s analysis could
end there. For the sake of completeness, the court will briefly consider whether
the petitioner has stated the “extraordinary circumstances” necessary to justify
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equitable tolling. The petitioner repeatedly has cited his mental illnesses as the
reason why he decided to plead guilty, why he did not appeal and why he did
not know when to file for federal habeas relief. “Many cases have concluded
that an applicant’s mental limitations can support equitable tolling.” Perry v.
Brown, No. 19-1683, 2020 WL 702834 (7th Cir. Feb. 12, 2020) (citing
Mayberry, 904 F.3d at 530; Schmid v. McCauley, 825 F.3d 348, 350 (7th Cir.
2016); Davis v. Humphreys, 747 F.3d 497, 498 (7th Cir. 2014)). Mental illness
may serve as an extraordinary circumstance to toll the limitations period “‘only
if the illness in fact prevents the sufferer from managing his affairs and thus
from understanding his legal rights and acting upon them.’” Mayberry, 904
F.3d at 530 (quoting Obriecht 727 F.3d at 750-51) (emphasis in Obriecht).
The only specific reference to any mental or emotional disorder that the
petitioner has made in this court is his assertion at page 6 of the petition that
he “suffer[s] from antisocial disorder,” which means that he doesn’t know how
to associate with people. Dkt. No. 1 at 6. He mentioned at page 7 of the petition
that during court, his mental illness caused him to panic and “suffer P.T.S.D.
flash back memory of movie that people never came back home after court and
die in prison so I thought it was going to happen to me so I lose control of
myself and said something.” Id. at 7. He says that he has taken medication for
his mental illnesses, that he took it before he was charged and that the parties
in state court, including his lawyer, knew that he was mentally ill. He has
provided no proof of any of those facts. He has not provided medical records, or
prescriptions. He has not told the court what medications he was taking, or
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why those medications did not help him. He has not demonstrated to the court
that his mental illness or illnesses constitute an “extraordinary circumstance.”
If the court were convinced that the petitioner had diligently pursued his
rights, it might consider appointing a lawyer to assist the petitioner in
presenting evidence regarding his mental illnesses. See Schmid, 825 F.3d at
350. But given the petitioner’s extreme tardiness in filing his federal petition,
appointing a lawyer would be futile.
The petitioner also asserts his actual innocence. “[A]ctual innocence, if
proved serves as a gateway through which a petitioner may pass whether the
impediment is a procedural bar . . . or . . . expiration of the statute of
limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). But “tenable
actual-innocence gateway pleas are rare.” Id. For a claim of actual innocence to
excuse an untimely petition, “a petitioner ‘must show that it is more likely than
not that no reasonable juror would have convicted him in light of . . . new
evidence.’” Id., 569 U.S. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327
(1995)).
The petitioner has provided no evidence supporting his claim that he is
actually innocent; he simply says that he is. He has not provided any
additional evidence since Judge Peterson issued his screening order. Judge
Peterson’s statements remain true: “[the petitioner’s] actual innocence claim is
on thin ice: he essentially contends that he is innocent because he had sex
with a child with her consent. That is not a substantive defense to the offense.”
Dkt. No. 12 at 5. The petitioner’s “evidence” is not enough; the actual
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innocence exception requires “‘evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court is also
satisfied that the trial was free of nonharmless constitutional error.’” Id. at 401
(quoting Schlup, 513 U.S. at 316).
The petitioner filed this petition over three and a half years after his oneyear limitations period had expired. His state post-conviction motion was not
filed in time to trigger AEDPA’s statutory tolling exception. He did not ask the
court to equitably toll his petition, but the court’s independent review shows
that the petitioner did not diligently pursue his rights, he has not offered
evidence that his alleged mental illnesses constituted an “extraordinary
circumstance” and he has not offered the evidence necessary to show actual
innocence. The court will dismiss the petition under 28 U.S.C. §2244(d)(1)(A).2
The court also notes that in his August 28, 2018 letter, the petitioner
argues that the respondent did not timely answer or otherwise respond to the
petition. Dkt. No. 32. The court perceives that the petitioner is arguing that the
respondent was required to answer the petition by the deadline of August 13,
2018, and that because the respondent filed a motion to dismiss rather than
an answer, the court should not entertain the motion. But Fed. R. Civ. P. 12(a)
requires a party who has been sued to file “a responsive pleading;” it does not
require that pleading to be an answer. A defendant may file a motion to dismiss

Because the court is dismissing the petition as time-barred, it will not address
the respondent’s additional, alternative argument that the petition must be
dismissed for failing to exhaust his available state remedies.
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in lieu of an answer. Von Germeten v. Planet Home Lending, LLC, No. 17-cv167-pp, 2019 WL 2234577, at *2 (E.D. Wis. May 23, 2019). The respondent
filed his motion to dismiss by the August 13, 2018 deadline, as required by this
court’s order and by the rules.
III.

Certificate of Appealability
Under Rule 11(a) of the Rules Governing Section 2254 Cases, the court

must consider whether to issue a certificate of appealability. A court may issue
a certificate of appealability only if the applicant makes a substantial showing
of the denial of a constitutional right. See 28 U.S.C. §2253(c)(2). The standard
for making a “substantial showing” is whether “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. 472, 494
(2000) (internal quotations omitted). The court declines to issue a certificate of
appealability because no reasonable jurist could debate that the petitioner’s
petition should be dismissed as untimely under 28 U.S.C. §2244(d).
IV.

Conclusion
The court ORDERS that the Clerk of Court shall substitute Steven R.

Johnson for respondent Brian Foster.
The court GRANTS the respondent’s motion to dismiss. Dkt. No. 30.

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The court ORDERS that the petition for writ of habeas corpus is
DISMISSED as time-barred under 28 U.S.C. §2244(d).
The court DECLINES TO ISSUE a certificate of appealability.
Dated in Milwaukee, Wisconsin this 3rd day of March, 2020.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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