Jones v. Boughton
ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 4/26/2021. 4 Judge Duffin's recommendation ADOPTED. 6 Petitioner's objections OVERRULED. 1 Habeas petition DISMISSED as successive. The court DECLINES to issue certificate of appealability. Case DISMISSED with prejudice. Clerk of Court to update docket to reflect that Paul Kemper is respondent. (cc: all counsel and mailed to Derwin Jones at Racine Correctional Institution)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DERWIN DEWAYNE JONES,
Case No. 20-cv-514-pp
ORDER OVERRULING PETITIONER’S OBJECTIONS (DKT. NO. 6),
ADOPTING JUDGE DUFFIN’S RECOMMENDATION (DKT. NO. 4),
DISMISSING PETITION AS SECOND OR SUCCESSIVE (DKT. NO. 1)
DISMISSING CASE AND DECLINING TO ISSUE CERTIFICATE OF
On March 31, 2020, the petitioner, who is incarcerated at Racine
Correctional Institution and is representing himself, filed a petition for a writ of
habeas corpus under 28 U.S.C. §2254 challenging his 1999 conviction in
Kenosha County Circuit Court for first-degree sexual assault with the use of a
dangerous weapon. Dkt. No. 1; State v. Jones, Kenosha County Case No.
98CF001184 (available at https://wcca.wicourts.gov). On April 2, 2020,
Magistrate Judge William Duffin screened the petition under Rule 4 of the
Rules Governing Section 2254 Cases and recommended that the court dismiss
the petition as second or successive. Dkt. No. 4. A week later, the court
received from the petitioner objections to that recommendation. Dkt. No. 6.
Under Rule 2 of the Rules Governing Section 2254 Cases, “[i]f the petitioner is
currently in custody under a state-court judgment, the petition must name as
respondent the state officer who has custody.” The petitioner is an inmate at
Racine Correctional Institution. Dkt. No. 8. This order reflects Warden Paul
Kemper as the respondent.
Judge Duffin did not commit clear error in recommending that the court
dismiss the petition. This order overrules the petitioner’s objections, adopts
Judge Duffin’s recommendation, dismisses the petition as an unauthorized
second or successive petition and declines to issue a certificate of appealability.
Underlying State Case
The petition references State v. Jones, Kenosha County Case No.
98CF001184 (available at https://wcca.wicourts.gov). Dkt. No. 1 at 2.
According to the publicly available docket for that case, the State filed a
criminal complaint on December 3, 1998. State v. Jones, Kenosha County Case
No. 98CF001184 (available at https://wcca.wicourts.gov). On December 8,
1999, a Kenosha County jury found the petitioner guilty of first-degree sexual
assault with the use of a dangerous weapon. Id.
Prior Federal Habeas Petitions
The petitioner does not object to Judge Duffin’s recitation of the facts of
the petitioner’s prior federal court proceedings, and this court adopts them. A
Kenosha County jury found the petitioner guilty in December of 1999. Dkt. No.
4 at 1. In 2008, Magistrate Judge Patricia Gorence denied the petitioner’s first
federal habeas petition challenging that conviction. Id. (citing Jones v. Smith,
No. 05-cv-304, 2008 WL 820145 (E.D. Wis. Mar. 26, 2008)). In 2010, Judge
J.P. Stadtmueller dismissed for lack of jurisdiction the petitioner’s second
habeas petition challenging the 1999 conviction, concluding that it was an
unauthorized second or successive petition. Id. at 2 (citing Jones v. Smith,
Case No. 10-cv-260 (E.D. Wis.), Dkt. No. 12). Judge Stadtmueller stated that
the petitioner “was clearly lying” on the form petition when he indicated that he
had not previously filed a petition challenging the same conviction. Id. (citing
Case No. 10-cv-260 (E.D. Wis.), Dkt. No. 12 at 2). Judge Stadtmueller
cautioned that “such dishonesty is sanctionable.” Id. at 2 (citing Case No. 10cv-260 (E.D. Wis.), Dkt. No. 12 at 2). In 2014, Judge Lynn Adelman dismissed
the petitioner’s third habeas petition challenging the same 1999 conviction. Id.
(citing Jones v. Kemper, Case No. 13-cv-1405 (E.D. Wis.), Dkt. No. 9). In filing
that petition, the petitioner “omitted the pages of the habeas petition form
where he was asked about his prior challenges.” Id. (citing Case No. 13-cv-1405
(E.D. Wis.), Dkt. No. 1).
Current Federal Habeas Petition (Dkt. No. 1)
On March 31, 2020, the petitioner filed the current habeas petition. Dkt.
No. 1. The petition asserts that the circuit court violated the petitioner’s right
to due process by relying on inaccurate information at his sentencing. Id. at 6.
In the section of the form asking whether the petitioner had “previously filed
any type of petition, application, or motion in a federal court regarding the
state conviction that [he is] challenging in this petition,” the petitioner marked
“No.” Id. at 9.
Report and Recommendation (Dkt. No. 4)
On April 2, 2020, Judge Duffin screened the petition under Rule 4 of the
Rules Governing Section 2254 Cases and recommended that this court dismiss
it. Dkt. No. 4. Noting the petitioner’s three prior challenges to the underlying
conviction, Judge Duffin concluded that the petition was an unauthorized
successive petition. Id. at 1-2. Judge Duffin stressed that in Case No. 10-cv260, Judge Stadtmueller had dismissed the second petition as second or
successive, found that the petitioner had lied about his prior challenge and
warned the petitioner that dishonesty with the court was sanctionable. Id. at 2.
Observing that in the petitioner’s current (fourth) petition, the petitioner “again
falsely stated ‘under penalty of perjury’ that he ha[d] not ‘previously filed any
type of petition, application, or motion in a federal court regarding the state
conviction that [he is] challenging in this petition,’” Judge Duffin remarked that
“sanctions may be appropriate.” Id. Judge Duffin concluded that the court
must dismiss the petition, because there was no evidence that the petitioner
had sought or obtained authorization from the Seventh Circuit Court of
Appeals before filing it. Id. at 2-3.
Petitioner’s Objections (Dkt. No. 6)
On April 9, 2020, the court received from the petitioner written
objections to Judge Duffin’s recommendation. Dkt. No. 6. The petitioner states
that although Judge Duffin correctly concluded that the petitioner previously
filed a successive petition, “no Wisconsin State Court has never address or
ruled on the issue in his petition or on the finding in his records.” Id. at 1.
Much of the objection argues the facts regarding the state court proceedings.
Id. at 1-2. The petitioner contends that “[i]n the interest of justice this court
must review the record and make a decision on the merits of the issues and not
how many times [he has] submitted a petition.” Id. at 2. The petitioner says
that he “did not intentionally lie in his petition;” he asserts that he “clearly
misunderstood the question,” and that he “misinterpreted the question as
asking has he ever facilitated a third petition to attain relief on the grounds of
the court facilitated inaccurate information to consider sentence.” Id. The
petitioner also asserts that he “is only appealing the decision through a writ of
habeas corpus that was decided by the lower court on November 19, 2019 and
the Supreme Court on March 17, 2020.” Id. The petitioner says that he “has a
due process right to appeal any decision by the court if a decision is rendered
regardless of how many times that decision is rendered.” Id.
Under Rule 12 of the Rules Governing Section 2254 Cases, the Federal
Rules of Civil Procedure apply in habeas cases. Rule 72(b)(1) allows a district
court to refer a case to a magistrate judge, who then “conduct[s] the required
proceedings,” and “enter[s] a recommended disposition.” Fed. R. Civ. P.
72(b)(1). 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)(2); 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. 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). “The clear error standard means that the district
court can overturn the magistrate judge's ruling only if the district court is left
with the definite and firm conviction that a mistake has been made.” Wees v.
Samsung Heavy Indus. Co. Ltd., 126 F.3d 925, 943 (7th Cir. 1997).
Judge Duffin correctly determined that because this is the petitioner’s
fourth petition and thus a successive petition, and because the petitioner did
not obtain permission from the Seventh Circuit before filing it, the court must
dismiss it. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
says that a federal district court is not “required to entertain an application for
a writ of habeas corpus to enquire into the detention of a person pursuant to a
judgment” of a prior court if the legality of that judgment already has been
determined on a prior writ of habeas corpus. 28 U.S.C. §2244(a). AEDPA
requires petitioners who wish to file a “second or successive” federal habeas
petition to first obtain authorization from the federal court of appeals before
filing the petition in the district court. 28 U.S.C. §2244(b)(3)(A). “Section
2244(b)(3)(A) ‘is an allocation of subject matter jurisdiction to the court of
appeals. A district court must dismiss a second or successive petition, without
awaiting any response from the government, unless the court of appeals has
given approval for the filing.’” In re Page, 170 F.3d 659, 661 (7th Cir. 1999)
(quoting Nuñez v. United States, 96 F.3d 990, 991 (7th Cir. 1996) (emphasis in
As the Seventh Circuit has explained, not every petition that a petitioner
previously filed constitutes a prior application for the purposes of §2244(b).
Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003). The Seventh Circuit does
not count “previous petitions that were dismissed for technical or procedural
deficiencies that the petitioner can cure before refiling.” Id. Such petitions
include those “dismissed because the petitioner filed in the wrong district,” id.
(citing Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999)), those in which the
petitioner failed to pay the filing fee, id. (citing Benton v. Washington, 106 F.3d
162, 165 (7th Cir. 1996)), and those dismissed as premature, id. (citing Slack
v. McDaniel, 529 U.S. 473, 485-86 (2000)). But prior petitions dismissed as
untimely “or that have been denied based on a procedural default . . . do count
as prior petitions because the petitioner is incapable of curing the defect
underlying the district court’s judgment.” Id. (citing In re Cook, 215 F.3d 606,
608 (6th Cir. 2000)).
Judge Gorence denied on the merits the petitioner’s first federal habeas
petition challenging his 1999 conviction for first-degree sexual assault with the
use of a dangerous weapon. Jones v. Smith, No. 05-cv-304, 2008 WL 820145
(E.D. Wis. Mar. 26, 2008)). In the language of §2244(a), she determined the
legality of the petitioner’s detention pursuant to the state court’s judgment.
That means that when the petitioner filed another petition challenging that
same conviction, the court would have had jurisdiction to consider it only if the
petitioner first had gotten permission from the Seventh Circuit to file it. He did
not, so Judge Stadtmueller dismissed the second habeas petition challenging
the 1999 conviction for lack of jurisdiction. Jones v. Smith, Case No. 10-cv-260
(E.D. Wis.), Dkt. No. 12. Judge Adelman dismissed the third habeas petition
challenging the same 1999 conviction, for the same reason. Jones v. Kemper,
Case No. 13-cv-1405 (E.D. Wis.), Dkt. No 9.
The court understands that the petitioner feels like there is some aspect
of the 1999 conviction that has not been considered on federal habeas review.
He does not explain why he did not raise that issue (his claim that he was
sentenced on inaccurate information) in the petition he filed in 2005. If he has
a good reason for not raising the issue in the 2005 petition, he should present
that reason to the Seventh Circuit Court of Appeals. He may ask the Seventh
Circuit to give him permission to file a successive petition raising the issue that
he says no court ever has considered. But this court does not have the
authority to rule on this successive petition. “Jurisdiction” is a federal court’s
authority to decide a case or controversy. If a court does not have jurisdiction,
it cannot decide a case or controversy—even if the issue never has been
decided before, even if the petitioner has a good reason for making the
argument, even if justice demands that something be done. Because the
petitioner did not get permission from the Seventh Circuit to file this fourth
petition, this court cannot rule on it. It has no authority to do so.
As for the petitioner’s assertion that he did not lie about having filed
previous petitions, the petitioner’s statement that he “misinterpreted” the
question, or “misunderstood” it, defies belief. Page 9 of the petition form has a
section titled “PRIOR FEDERAL CHALLENGES.” Dkt. No. 1 at 9. It asks, “Have
you previously filed any type of petition, application, or motion in a federal
court regarding the state conviction that you are challenging in this petition?”
Id. It refers to “any” type of petition, application or motion, and it specifically
refers to the “state conviction” being challenged. The question does not ask
whether the petitioner ever filed a prior petition about whether the court
sentenced him on inaccurate information. It asks whether the petitioner has
ever filed a petition challenging the conviction—period. The petitioner’s answer
of “no” is untruthful. He is abusing the judicial system and lying about it.
If the petitioner truly believes that he has a legal, valid reason for filing a
successive petition, he should explain that reason to the Seventh Circuit and
get that court’s permission to file a successive petition. If he files another
petition in this court without authorization from the Seventh Circuit, he will be
subject to sanctions. These sanctions may include money penalties or an order
barring him from filing future cases in this court.
Certificate of Appealability
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. 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 petitioner 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) (internal quotations omitted). The court declines to issue a certificate of
appealability, because reasonable jurists could not debate that the petition is a
successive petition and that the petitioner filed it without obtaining
authorization from the Seventh Circuit Court of Appeals.
The court OVERRULES the petitioner objections. Dkt. No. 6.
The court ADOPTS Judge Duffin’s recommendation. Dkt. No. 4.
The ORDERS that the petition for writ of habeas corpus is DISMISSED
as successive. Dkt. No. 1.
The court DECLINES TO ISSUE a certificate of appealability.
The court ORDERS that this case is DISMISSED WITH PREJUDICE.
The clerk will enter judgment accordingly.
Dated in Milwaukee, Wisconsin this 26th day of April, 2021.
BY THE COURT:
HON. PAMELA PEPPER
Chief United States District Judge
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