Earls v. Fuchs et al
ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 4/27/2021. 8 Petitioner's motion for prompt hearing DENIED as moot. 1 Petition for writ of coram nobis DISMISSED as successive §2254 petition. The court DECLINES to issue certificate of appealability. Case DISMISSED with prejudice. (cc: all counsel and mailed to Fairly Earls at Columbia Correctional Institution)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
FAIRLY W. EARLS,
Case No. 20-cv-635-pp
ORDER DISMISSING CORAM NOBIS PETITION AS SECOND OR
SUCCESSIVE HABEAS PETITION (DKT. NO. 1) AND DISMISSING CASE
On April 22, 2020, the petitioner, who is incarcerated at Columbia
Correctional Institution and is representing himself, filed a petition for writ of
coram nobis under 28 U.S.C. §1651 challenging his 2012 conviction for ten
counts of bail jumping. Dkt. No. 1. Three weeks later, the petitioner paid the
$5.00 filing fee. Because the court lacks jurisdiction, it must dismiss the
petition and the case.
Underlying State Case
In November 2005, the State of Wisconsin filed a criminal complaint
against the petitioner in Fond du Lac County Circuit Court. State v. Earls,
Fond du Lac County Case No. 05CF000419 (available at
https://wcca.wicourts.gov). On August 7, 2012, a jury returned a verdict
finding the petitioner guilty of ten counts of bail jumping. Id. Two months later,
the clerk entered judgment. Id. On December 26, 2013, the petitioner filed a
notice of appeal. Id. The Wisconsin Court of Appeals affirmed the petitioner’s
convictions on November 19, 2014. Id. Four months later, the Wisconsin
Supreme Court denied review. Id.
Federal Habeas Petitions
Earls v. Dittman, Case No. 15-cv-637-pp
On May 27, 2015, the petitioner filed a petition for writ of habeas corpus
under 28 U.S.C. §2254 challenging the bail jumping convictions in State v.
Earls, Case No. 05CF000419. Earls v. Dittman, Case No. 15-cv-637 (E.D. Wis.),
Dkt. No. 1. The petition asserted seventeen claims related to state contract law,
actual innocence, ineffective assistance of counsel, state evidentiary rulings,
double jeopardy and trial court error. Id. at 6-14. This court screened the
petition under Rule 4 of the Rules Governing Section 2254 Cases, denied the
petition and dismissed the case. Dkt. No. 6. On March 7, 2019, the court
denied the petitioner’s motion to reconsider under Federal Rule of Civil
Procedure 60(b). Dkt. No. 31.
The petitioner appealed to the Seventh Circuit Court of Appeals. Id. at
Dkt. No. 32. On October 31, 2019, the Seventh Circuit denied a certificate of
appealability. Id. at 38.
Earls v. Dittman, Case No. 17-cv-1465-LA
Meanwhile, on October 25, 2017, the petitioner filed a “Successive
Habeas Petition Based on Change In Substantive Law ‘New Rule of Law’ 28
U.S.C.S. §2244 28 U.S.C.S. §2254.” Earls v. Dittman, Case No. 17-cv-1465
(E.D. Wis.), Dkt. No. 1. Magistrate Judge David Jones recommended that the
court dismiss the petition and the case. Dkt. No. 4 at 5-6. Judge Jones found
that 28 U.S.C. §2244(b) mandated dismissal because, contrary to the
petitioner’s argument, the second petition did not rely on a new rule of
constitutional law; accordingly, Judge Jones concluded that the petitioner
needed authorization from the Seventh Circuit before filing it. Id. at 3-4. Judge
Jones saw no evidence that the Seventh Circuit had granted the petitioner that
authorization. Id. at 4.
On November 27, 2017, the petitioner filed written objections to Judge
Jones’s report and recommendation. Dkt. No. 5. District Court Judge Lynn
Adelman reviewed the report and recommendation de novo, adopted the
recommendation and dismissed the case. Dkt. No. 6. Judge Adelman explained
[o]n May 27, 2015, Earls filed in this court a petition for a writ of
habeas corpus challenging his conviction in Fond Du Lac County,
Wisconsin, Case No. 2005 CF 419. On July 10, 2015, Judge Pamela
Pepper of this court denied the petition on the merits. See ECF No.
6 in E.D. Wis. Case No. 15-C-637. The petitioner appealed the denial
but was unsuccessful. In the present case, Earls again petitions for
a writ of habeas corpus with respect to the same conviction. Because
this court already adjudicated a habeas petition directed to that
conviction on the merits, the current petition is a second or
successive petition within the meaning of 28 U.S.C. § 2244(b).
Claims presented in second or successive habeas petitions must be
Id. at 1. Judge Adelman stressed that “even if an exception applie[d], the
second or successive petition may not proceed in the district court unless the
court of appeals first authorizes its filing.” Id. at 1-2 (citing 28 U.S.C.
§2244(b)(3)). Because the petitioner did not have such authorization, Judge
Adelman concluded that the court lacked jurisdiction over the petition. Id. at 2
(citing Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996)).
Intant Coram Nobis Petition
On April 22, 2020, the petitioner filed a document titled “Coram Nobis
Motion to Correct Illegal Sentence 28 U.S.C. §1651” in this case. Earls v.
Fuchs, Case No. 20-cv-635 (E.D. Wis.), Dkt. No. 1. The petitioner asserts that
his sentence is illegal and “must be corrected to avoid an error of fundamental
character and miscarriage of justice.” Id. at 4. He states that his ten
convictions for bail jumping “are of the Same Statutory Provisions and Same
Elements being given as cumlative [sic] Punishment in a Single Proceeding and
thereby an Illegal Sentence according to the Law.” Id. He argues that his
sentence violates Wisconsin statutes and his federal constitutional rights under
the Sixth, Eighth and Fourteenth Amendments. Id. at 5-7.
The writ of coram nobis “is an ancient common-law remedy” available for
claims of legal and factual error in criminal cases. U.S. v. Wilkozek, 822 F.3d
364, 368 (7th Cir. 2016) (quotations omitted) (quoting United States v. Denedo,
556 U.S. 904, 913 (2009)). The authority of a federal court to grant coram nobis
relief “is contingent on that court’s subject-matter jurisdiction over the case or
controversy.” Denedo, 556 U.S. at 911. The Seventh Circuit has held that
coram nobis relief is available when “(1) the error alleged is ‘of the most
fundamental character’ as to render the criminal conviction ‘invalid’; (2) there
are ‘sound reasons’ for the defendant’s ‘failure to seek earlier relief’; and (3) ‘the
defendant continues to suffer from his conviction even though he is out of
custody.’” Id. (citing United States v. Sloan, 505 F.3d 685, 697 (7th Cir. 2007);
United States v. Keane, 852 F.2d 199 (7th Cir. 1988)). “[W]rits in the nature of
coram nobis are limited to former prisoners who seek to escape the collateral
civil consequences of wrongful conviction.” Owens, 235 F.3d at 360. A state
prisoner still in custody must seek relief under 28 U.S.C. §2254; a state
prisoner cannot bypass the statutory restrictions of §2254 by calling his
pleading a petition of coram nobis under §1651. Id.
So, although the petitioner has called his 2020 pleading a “Coram Nobis
Motion to Correct an Illegal Sentence,” and has cited 28 U.S.C. §1651, the
pleading really is another habeas corpus petition under 28 U.S.C. §2254—his
third habeas corpus petition challenging the same conviction and sentence. In
some instances, recharacterizing as a §2254 petition a pleading that a pro se
petitioner has characterized as something else “can have serious
consequences,” because it can subject any subsequent motion to the “second
or successive” requirements Judge Adelman discussed, and which this court
discusses below. Castro v. United States, 540 U.S. 375, 377 (2003). For that
reason, before a court recharacterizes as a first request for habeas relief a
pleading that the pro se filer has characterized as something else, it first must
“notify the pro se litigant that it intends to recharacterize the pleading, warn
the litigant that this recharacterization means that any subsequent [habeas]
motion will be subject to the restrictions on ‘second or successive’
motions, and provide the litigant an opportunity to withdraw the motion
or to amend it so that it contains all the [habeas] claims he believes he
has.” Id. at 383.
Here, the court need not provide such a warning before recharacterizing
the petitioner’s 2020 pleading as a §2254 petition. This is not the petitioner’s
first habeas petition. It is his third. There is no danger that recharacterizing
the “coram nobis” petition as a §2254 petition could subject any future
petitions to the “second or successive” requirements that otherwise would not
apply. Because the petitioner already has filed two prior habeas petitions, any
future petition he files will be a successive petition, regardless of whether the
court recharacterizes this one as a §2254 petition.
The court’s usual practice is to “screen” a §2254 petition under Rule 4 of
the Rules Governing Section 2254 Cases, which states that
[i]f it plainly appears from the face of the petition and any attached
exhibits that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition and direct the clerk to
notify the petitioner. If the petition is not dismissed, the judge must
order the respondent to file an answer, motion or other response
within a fixed time, or to take other action the judge may order.
A district court must allow a habeas petition to proceed unless it is clear
that the petitioner is not entitled to relief. At the screening stage, a district
court expresses no view as to the merits of any of the petitioner's claims.
Rather, it reviews the petition and exhibits to determine whether the petitioner
alleges that he is in custody in violation of the “Constitution or laws or treaties
of the United States.” 28 U.S.C. §2254(a).
But the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
identifies certain petitions that the court need not screen. AEDPA says that a
federal district court need not entertain an inquiry into the legality of a
petitioner's detention if a federal court already has determined the legality of
that detention in a prior application for writ of habeas corpus. 28 U.S.C.
§2244(a). To enforce this provision, 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 Page)).
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)).
In Case No. 15-cv-637, this court denied on their merits the claims in the
petitioner’s first federal habeas petition challenging the 2012 bail jumping
convictions. Earls v. Dittman, Case No. 15-cv-637 (E.D. Wis.), Dkt. No. 6. In
Case No. 17-cv-1465, Judge Adelman dismissed the petitioner’s second federal
habeas petition challenging the 2012 bail jumping convictions as an
unauthorized second petition. Earls v. Dittman, Case No. 17-cv-1465 (E.D.
Wis.), Dkt. No. 6.
While the petitioner calls the current petition a petition for coram nobis,
“[p]risoners cannot avoid the AEDPA's rules by inventive captioning.” Melton v.
United States, 359 F.3d 855, 857 (7th Cir. 2004) (citing Owens v. Boyd, 235
F.3d 356 7th Cir. 2000)). Because the petitioner is still in custody, §2254 is his
exclusive remedy for relief from his state convictions. Owens, 235 F.3d at 360.
That makes this petition a successive §2254 petition, which means that the
petitioner needed authorization from the Seventh Circuit before he could file it.
The petitioner has presented no evidence that he obtained permission from the
Seventh Circuit to file this successive petition. The court lacks jurisdiction over
the petition and must dismiss it.
The court notes that the petitioner filed several requests for updates and,
in March 2021, a motion for a prompt hearing (Dkt. No. 8). This order moots
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 it finds that reasonable jurists could not debate that the
petition is a successive §2254 petition and that the petitioner filed it without
obtaining authorization from the Seventh Circuit Court of Appeals.
The court ORDERS that the petitioner’s motion for a prompt hearing is
DENIED AS MOOT. Dkt. No. 8,
The court ORDERS that the petition for writ of coram nobis is
DISMISSED as a successive §2254 petition. 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 27th day of April, 2021.
BY THE COURT:
HON. PAMELA PEPPER
Chief United States District Judge
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