Youngmark v. Foster

Filing 17

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 2/24/2020. 10 Petitioner's objections OVERRULED; 9 Judge Jones's recommendation ADOPTED; petitioner's habeas petition DISMISSED as time-barred under 28 USC §2 244(d). 16 Petitioner's motion to update caption GRANTED; Clerk of Court to substitute Gary Boughton as respondent for Brian Foster. 16 Petitioner's motion to transfer case DENIED. 11 Petitioner's motion for consideration DENIED as moot. (cc: all counsel, via mail to Scott Youngmark at Wisconsin Secure Program Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

SCOTT A. YOUNGMARK,
Petitioner,
Case No. 18-cv-911-pp
v.
GARY BOUGHTON,1
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATIONS (DKT. NO. 9);
OVERRULING OBJECTIONS (DKT. NO. 10); DENYING AS MOOT MOTION
FOR CONSIDERATION (DKT. NO. 11); GRANTING MOTION TO AMEND
CAPTION (DKT. NO. 16); DENYING MOTION TO TRANSFER CASE (DKT.
NO. 16); DISMISSING CASE UNDER 28 U.S.C. §2244(d) AND DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY.

On June 15, 2018, the petitioner—who represents himself—filed a
petition for a writ of habeas corpus under 28 U.S.C. §2254 challenging his
August 2012 conviction in Polk County Circuit Court for second-degree
intentional homicide and second-degree recklessly endangering safety. Dkt. No.
1 at 2. The clerk’s office assigned the case to Magistrate Judge David E. Jones,
who screened the petition on July 11, 2018. Dkt. No. 7. Judge Jones

The petitioner filed a motion stating that he presently is incarcerated at the
Wisconsin Secure Program Facility and asking the court to amend the caption
to reflect the proper respondent. The warden of the Wisconsin Secure Program
Facility is Gary Boughton. See https://doc.wi.gov/Pages/OffenderInformation/
AdultInstitutions/WisconsinSecureProgramFacility.aspx (last visited Feb. 6,
2020). Under Rule 2(a) of the Rules Governing Section 2254 Cases and Fed. R.
Civ. P. 25(d), the court will grant the petitioner’s motion and update the caption
to reflect the appropriate respondent.
1

1

determined that the petition was likely untimely under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) and offered the petitioner the
opportunity to show cause why Judge Jones should not dismiss the petition for
that reason. Id. The petitioner filed a brief, arguing that he had timely filed the
petition. Dkt. No. 8. After considering the petitioner’s arguments, Judge Jones
issued an August 15, 2018 recommendation that this court dismiss the
petition as untimely. Dkt. No. 9. The petitioner objected. Dkt. No. 10. He also
has filed a motion to substitute respondent and a motion to transfer the case to
the Western District of Wisconsin. Dkt. No. 16. The court denies the motion to
transfer and grants the motion to substitute respondent. On a de novo review
of the recommendation, this court finds that the petitioner filed his petition
after the AEPDA’s one-year time period had expired. It dismisses the case and
declines to issue a certificate of appealability.
I.

Background
A.

History

In December of 2011, the Polk County district attorney charged the
petitioner with second-degree recklessly endangering safety. Dkt. No. 1; see
also State of Wisconsin v. Scott Allen Youngmark, Case No. 2011CF000397
(Polk County Circuit Court), available at https://wcca.wicourts.gov. The
petitioner pled no contest in August of 2012. Id. While on bond and awaiting
sentence in Case No. 2011CF000397 the petitioner killed his fiancée, and the
Polk County district attorney charged him with second-degree intentional
homicide. Dkt. No. 1; see also State of Wisconsin v. Scott Allen Youngmark,
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Case No. 2012CF000462 (Polk County Circuit Court), available at
https://wcca.wicourts.gov. The petitioner pled guilty in April of 2013. Id.; dkt.
no. 1 at 2. The petitioner appealed the convictions and the State Public
Defender filed a no-merit report, which the petitioner contested. Dkt. No. 1 at
3. The Wisconsin Court of Appeals summarily affirmed the convictions on
November 1, 2016. Id.; see also Dkt. No. 1-1 at 16. The petitioner did not seek
review in the Wisconsin Supreme Court.
The petitioner filed several motions for state post-conviction relief. Dkt.
No. 1 at 4. He filed petitions under State v. Knight, 168 Wis. 2d 509 (Wis. 1992)
in the Wisconsin Court of Appeals on December 14, 2017. Id. That court
dismissed the Knight petitions on December 29, 2017. Id. at 4-5; see dkt. no.
1-1 at 52. The petitioner sought review of that decision in the Wisconsin
Supreme Court on January 28, 2018; the Wisconsin Supreme Court denied
review on June 11, 2018. Dkt. No. 1-1 at 72. Simultaneously, the petitioner
filed a “Motion for Sentence Enforcement” in Polk County Circuit Court on
November 17, 2017, which asked that the state stop removing 50% of his funds
for restitution. Dkt. No. 1-1 at 61. On February 23, 2018, the petitioner filed a
follow-up letter to his November 17, 2017 motion, asking for appointment of
counsel and an evidentiary hearing. Dkt. No. 1-1 at 65. On April 3, 2018, a
circuit judge in Polk County denied the petitioner’s motion. Dkt. No. 1-1 at 66.
On June 15, 2018, the petitioner filed this federal habeas petition. He
raised three grounds for relief: ineffective assistance of trial and appellate
counsel, prosecutorial and police misconduct and “judicial error.” Dkt. No. 1 at
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6-30. For relief, he asks to be allowed to withdraw his guilty plea and demands
a jury trial. Id. at 36. He also asks this court to schedule an evidentiary
hearing on the petition, “so that he can further the record in case he has to
Appeal.” Id.
B.

Judge Jones’s Report and Recommendation

Judge Jones began by reviewing the petitioner’s state court filings. Dkt.
No. 9 at 2. He observed that the petitioner’s response to the order to show
cause asserted that the January 28, 2018 petition for review in the Wisconsin
Supreme Court had tolled his limitations period. Id. at 3.
Judge Jones explained that AEDPA generally requires a habeas petition
to be filed within one year from “the date on which the [state] judgment became
final by the conclusion of direct review or the expiration of the time for seeking
such review.” Dkt. No. 9 at 4 (citing Ray v. Clements, 700 F.3d 993, 1003 (7th
Cir. 2012)). Judge Jones recounted that the Wisconsin Court of Appeals had
denied the petitioner’s appeal on November 1, 2016. Id. He noted that under
Wis. Stat. §808.10(1), the petitioner had thirty (30) days from that date to file a
petition for review in the Wisconsin Supreme Court. Id. Because the petitioner
did not file for review in the Wisconsin Supreme Court within those thirty days,
Judge Jones determined that AEDPA required the petitioner to file his petition
within one year of the expiration of his time to seek direct review—here, no
later than December 1, 2017. Id. Judge Jones addressed the petitioner’s
argument that his January 28, 2018 petition for review in the Wisconsin
Supreme Court should have tolled his statute of limitations period until the
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Supreme Court denied his motion (which it did on June 11, 2018). Id. at 4.
Judge Jones explained that in order to “stop the clock” on the habeas
limitations period, the petitioner would have had to file his petition for review of
his direct appeal with the Wisconsin Supreme Court within thirty days of the
appellate court’s decision. Id.
Judge Jones examined whether any of the petitioner’s other postconviction motions served to toll the limitations period under 28 U.S.C.
§2244(d)(2). Id. at 5. Judge Jones noted that two of the petitioner’s postconviction motions—those filed on December 14, 2017 and February 1, 2018—
were filed after the December 1, 2017 statute of limitations deadline. Id. As for
the petitioner’s November 17, 2017 post-conviction motion, Judge Jones wrote
that “because the motion relates to money in [the petitioner’s] prison account
and is not ‘in respect to the pertinent judgment or claim,’ that motion also does
not toll the petition.” Id. (quoting 28 U.S.C. §2244(d)(2)). Judge Jones
recommended that this court dismiss the case and deny a certificate of
appealability. He referred the case to this court for final disposition because
under Coleman v. Labor & Indus. Review Comm’n, 860 F.3d 461 (7th Cir.
2017), he could not enter a final disposition without the consent of all of the
parties. Id. at 6.
C.

Petitioner’s Objections (Dkt. No. 10)

The court received the petitioner’s objections to Judge Jones’s
recommendation on August 21, 2018. Dkt. No. 10. The petitioner agrees that
he did not seek further review of his direct appeal in the Wisconsin Supreme
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Court, but says he did not do so because “he was appointed Counsel through
the Wisconsin State Public Defender’s Office because he is indigent.” Id. at 2.
He maintains that Judge Jones should have found that his January 28, 2018
petition for review in the Wisconsin Supreme Court tolled the AEDPA
limitations period. Id. at 3, 5. He argues that Judge Jones should have
considered whether to equitably toll the limitations period. Id. at 4. He argues
that his case warrants equitable tolling because he “has been forced to rely on
the State Public Defender’s Office for assistance of counsel has run amuck
[sic]. Furthermore, because he has been forced to depend on 3-other prison
litigators to get an illegal sentence overturned this has proven an exceptional
case that requires tolling.” Id. at 4.
II.

Analysis
A.

Standard of Review

The Federal Rules of Civil Procedure apply in habeas cases. Rule 12,
Rules Governing §2254 Cases in the United States District Courts. Under Fed.
R. Civ. P. 72(b), when a magistrate judge issues a recommendation on a
dispositive matter, a dissatisfied party has fourteen days from the date the
magistrate judge issues the recommendation to file “specific written
objections.” Fed. R. Civ. P. 72(b); see also 28 U.S.C. §636(b)(1) (“A judge of the
court shall make a de novo determination of those portions of the report or
specific proposed findings or recommendations to which an objection is
made.”). The petitioner must specify “each issue for which review is sought,”
but need not specify the “factual or legal basis of the objection.” Johnson v.
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Zema Sys. Corp., 170 F.3d 734, 741 (7th Cir. 1999). The district court must
conduct a de novo review “only of those portions of the magistrate judge’s
disposition to which specific written objection is made.” Id. at 739. “If no
objection or only partial objection is made, the district court judge reviews
those unobjected portions for clear error.” Id. (citations omitted).
B.

Application

AEDPA institutes 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 does not argue that any state action
prevented him from filing this habeas petition. He does not argue that he is
asserting a right newly recognized by the Supreme Court. He does not argue
that his habeas claims rely on newly discovered evidence. That leaves
§2244(d)(1)(A), which provides that the one-year limitations period begins on
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the date the petitioner’s conviction became final by the conclusion of direct
review or the expiration of the time for seeking such review.
The Wisconsin Court of Appeals summarily denied the petitioner’s appeal
on November 1, 2016. Dkt. No. 1 at 3. Under Wis. Stat. §808.10(1), the
petitioner was required to file a petition for review in the Wisconsin Supreme
Court “within 30 days of the date of the decision of the court of appeals”—that
is, by December 1, 2016. The petitioner did not file a petition for review with
the Wisconsin Supreme Court within that thirty days. He did not file a petition
for review at all. That means, as Judge Jones pointed out, that the petitioner’s
conviction became “final” and his one-year limitations period began to run on
December 1, 2016. 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 from the date the judgment
became final—until December 1, 2017—to file his federal habeas petition. The
court received the petition over six months later, on June 15, 2018.
AEDPA’s one-year time limitation can be “tolled,” or paused, in certain
circumstances. AEDPA has a statutory provision for “tolling” the one-year
clock, which reads, “[t]he 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)(2).

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On November 17, 2017, two weeks before his one-year federal limitations
period expired—the petitioner filed a motion in Polk County Circuit Court,
challenging the amount of restitution that was being withdrawn from his
prison accounts. Dkt. No. 1-1 at 59-61. He filed two Knight petitions in the
Wisconsin Court of Appeals on December 14, 2017—two weeks after the oneyear federal limitations period expired. Dkt. No. 1-1 at 52. When the Court of
Appeals denied those petitions, he filed a petition for review of that denial in
the Wisconsin Supreme Court on January 28, 2018. Dkt. No. 1-1 at 42-51.
The December 14, 2017 Knight petitions did not qualify to toll the
petitioner’s one-year statute of limitations period because the clock had run
thirteen days earlier. See Graham v. Borgen, 483 F.3d 475, 482-83 (7th Cir.
2007) (post-conviction motion filed after one-year deadline “had no tolling effect
whatsoever on the AEDPA statute of limitation.”)2 The same is true for the
petitioner’s January 28, 2018 petition seeking review in the Wisconsin
Supreme Court of the Court of Appeals’ December 29, 2017 dismissal of his
Knight petitions—it was filed after the December 1, 2017 deadline had passed.
The petitioner argues that all the time prior to the Wisconsin Supreme Court’s
June 11, 2018 denial of his petition for review should be tolled. Dkt. No. 10 at

Even if the petitioner had filed these motions prior to December 1, 2017, it is
unlikely that the court would have considered the Knight petitions “properly
filed” for purposes of 28 U.S.C. §2244(d)(1). Whether a motion is “properly filed”
is a matter of state procedural law and the federal habeas court owes deference
to the state’s interpretation of its procedural laws. Ray, 700 F.3d at 1006. In its
order dismissing the petitions, the Wisconsin Court of Appeals began by stating
that “[t]he petitions will be stricken because they are not verified as required by
Wis. Stat. §782.04.” Dkt. No. 1-1 at 52.
2

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6. In De Jesus v. Acevedo, 567 F.3d 941, 944 (7th Cir. 2009), the Seventh
Circuit held otherwise, stating that “[a] state court’s order denying a request for
collateral review (whether on the merits or for any procedural reason) does not
require the exclusion, under §2244(d)(2), of time that passed before the state
collateral proceeding began.”
The petitioner’s November 17, 2017 post-conviction motion in Polk
County Circuit Court is the only post-conviction motion filed before December
1, 2017. Judge Jones determined that that motion did not constitute a motion
for “post-conviction or other collateral review with respect to the pertinent
judgment or claim” under the statute. See 28 U.S.C. §2244(d)(2). The
penultimate paragraph of the petitioner’s objection asserts that this motion
should have tolled the limitations period because “this is an increase in his
sentence because he has already been serving his sentence from August 8,
2012, and increases the severity of his sentence, and has to be an Ex Post
Facto violation.” Dkt. No. 10 at 9.
The petitioner titled his November 17, 2017 Polk County motion as a
“Motion for Sentence Enforcement.” Dkt. No. 1-1 at 59. The motion explains
that the petitioner’s sentence “included an order for the Defendant to pay
$2,113.28 in restitution, and not to the State but to the victim’s family.” Id. He
says that three years after his sentence began, Wisconsin passed an amended
version of Wis. Stat. §973.20, which the petitioner says
increased the amount of monies to be deducted from inmate
accounts for restitution and other Court-ordered obligations to 50%
of the prison wages and monies deposited to account. On or about
December 1, 2016 the DOC started taking 50% from his account.
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This makes prison life more harsher than it was when Defendant
was sentenced.
Id.
Section 2244(d)(2) allows a district court to toll the limitations period for
“[t]he time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claims is
pending[.]” The question is whether the petitioner’s “Motion for Sentence
Enforcement” qualifies as “other collateral review with respect to the pertinent
judgment or claims is pending.” The motion did not challenge the amount of
restitution he must pay under the judgment or the fact that he had to pay
restitution. It challenged only the rate at which he had to pay the restitution,
as well as alleging that the statute that permitted the Department of
Corrections to take 50% of his wages unconstitutional. This court agrees with
Judge Jones that that motion did not qualify as a motion for “other collateral
review with respect to the pertinent judgment or claims[.]” The petitioner didn’t
ask the Polk County Circuit Court to review its judgment—he asked that court
to review how the Wisconsin Department of Corrections was collecting a
financial piece of that judgment. The motion did not raise the same or similar
claims as the ones the petitioner has raised in this federal petition.3 This
motion did not toll the petitioner’s statute of limitations.

Bolstering this conclusion is the fact that the Seventh Circuit considers
restitution payments to be a collateral consequence of a conviction with
“negligible effects on a petitioner’s physical liberty of movement.” Virsnieks v.
Smith, 521 F.3d 707, 718 (7th Cir. 2008). Claims concerning restitution are
not generally cognizable on federal habeas review. Id.
3

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C.

Equitable Tolling

The court first notes that the petitioner’s brief to Judge Jones did not ask
Judge Jones to consider the doctrine of equitable tolling. Dkt. No. 8. Despite
that fact, the petitioner objects that Judge Jones should have considered
applying the doctrine of equitable tolling. The petitioner says that
he is a poor-man imprisoned for a crime he did not commit. Because,
he has been forced to rely on the State Public Defender’s Office for
assistance of counsel has run amuck. Furthermore, because he has
been forced to depend on 3-other prison litigators to get an illegal
sentence overturned this has proven an exceptional case that
requires tolling.
Dkt. No. 10 at 4.
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, 75556 (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
12

omitted). While “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 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).
The petitioner has not sustained his burden on either of the Holland
factors. First, he has not demonstrated that he pursued his rights diligently. As
the court already has noted, he did not seek review of the court of appeals’
November 1, 2016 denial of his appeal. His brief to Judge Jones on the order to
show cause did not explain why he did not seek review in the Supreme Court.
In his objection to Judge Jones’s order, the petitioner says that he didn’t seek
review “because he was appointed Counsel through the Wisconsin State Public
Defender’s Office because he is indigent,” and that “[t]his made him
Procedurally defaulted.” Dkt. No. 10 at 2. This argument is confusing—the
petitioner argues that Judge Jones should have equitably tolled the limitations
period because he didn’t have a lawyer, but argues that he did not diligently
pursue his rights on direct appeal because he had an appointed lawyer. Even if
what the petitioner means to say is that his public defender erred, the
petitioner does not explain how the lawyer erred, or what the lawyer did or did
13

not do to prevent him from seeking review in the Wisconsin Supreme Court.
Even if the petitioner could identify a mistake that his public defender 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 651-52). “‘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 nothing happened in his case
between November 1, 2016 and December 14, 2017—over a year. If he
attributes this delay to his appointed counsel, he does not explain what
counsel did or did not do to cause that delay. 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
attached over three-hundred fifty pages of documents to his habeas petition,
but none of them indicate that the petitioner was attempting to pursue habeas
relief between November 1, 2016 and December 1, 2017. The petitioner has not
satisfied the first Holland factor—he has not shown that he was diligently
pursuing his rights.
Nor has the petitioner shown the second Holland factor—that
extraordinary circumstances stood in his way and prevented him from filing.
Many (if not most) habeas petitioners are poor, many have no legal training,
many rely on appointed public defenders to represent them and many rely on
other inmates to help them. See Gray, 865 F.3d at 912-13 (indigent defendant
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who proceeded without representation for a long time and had no particular
legal experience did not qualify for equitable tolling on these bases because
“that describes most habeas corpus petitioners and thus by definition is not
‘extraordinary.’”). These are unfortunate circumstances, but they are not
extraordinary circumstances; they are “common parts of prison life.” Douma,
840 F.3d at 872 (quoting Carpenter v. Dittman, Case No. 14-cv-771-JPS, 2015
WL 687599, at *5 (E.D. Wis. Feb. 18, 2015)).
The petitioner asserts 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. That is not enough; the actual
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).
Because the petitioner has not demonstrated either that he was diligently
pursuing his rights or that there were extraordinary circumstances that barred
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a timely filing, and because the petitioner did not make this argument to Judge
Jones, the doctrine of equitable tolling does not excuse the petitioner’s
untimely filing. The court will adopt Judge Jones’s recommendation and will
dismiss the petition.
III.

Motion for Consideration (Dkt. No. 11)
On November 16, 2018 the petitioner filed a motion asking the court to

consider his objections to Judge Jones’s report and recommendation. Dkt. No.
11. The court has done so, and will deny the motion as moot.
IV.

Motion to Transfer Case (Dkt. No. 16)
The petitioner asked the court to transfer his case to the Western District

of Wisconsin because presently he is incarcerated at the Wisconsin Secure
Program Facility, which is in that district. Dkt. No. 16.
AEDPA authorizes this district to consider the petitioner’s habeas
petition. 28 U.S.C. §2241(d) states that
Where an application for a writ of habeas corpus is made by
a person in custody under the judgment and sentence of a State
court of a State which contains two or more Federal judicial districts,
the application may be filed in the district court for the district
wherein such person is in custody or in the district court for the
district within which the State court was held which convicted and
sentenced him and each of such district courts shall have
concurrent jurisdiction to entertain the application. The district
court for the district wherein such an application is filed in the
exercise of its discretion and in furtherance of justice may transfer
the application to the other district court for hearing and
determination.
Polk County is in the Western District of Wisconsin. When the petitioner filed
his 28 U.S.C. §2254 petition, he was in custody at Waupun Correctional
Institution which is in the Eastern District of Wisconsin. Under 28 U.S.C.
16

§2241(d), the petitioner could have filed his petition in either the Western
District or the Eastern District. He chose to file his petition in this court. A
magistrate judge of this court screened his petition and recommended its
dismissal. This court has reviewed the petitioner’s case and has agreed with
Judge Jones. This court will exercise its discretion and decline to transfer the
case.
V.

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 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, 484
(2000) (internal quotations omitted). The court agrees with Judge Jones’s
recommendation to deny a certificate of appealability; no reasonable jurist
could debate that the petitioner’s petition was untimely under 28 U.S.C.
§2244(d).
VI.

Conclusion
The court GRANTS the petitioner’s motion to update caption. Dkt. No.

16. The court ORDERS that the clerk’s office shall update the docket to reflect

17

that the proper respondent is Gary Boughton, Warden of the Wisconsin Secure
Program Facility.
The court DENIES the petitioner’s motion to transfer case. Dkt. No. 16.
The court DENIES AS MOOT the petitioner’s motion for consideration.
Dkt. No. 11.
The court OVERRULES the petitioner’s objections, dkt. no. 10, and
ADOPTS Judge Jones’s recommendation to dismiss the petition, dkt. no. 9.
The court ORDERS that the petitioner’s 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 24th day of February, 2020.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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