Wingers v. Suter

Filing 21

ORDER granting Respondent's 12 Motion to Dismiss signed by Judge William C. Griesbach on 11/22/24. A certificate of appealability will be denied. (cc: all counsel and mailed to pro se party)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEAN J. WINGERS,
Petitioner,
v.

Case No. 24-C-195

CHRISTINE SUTER, 1
Respondent.
ORDER GRANTING RESPONDENT’S MOTION TO DISMISS
On February 12, 2024, Petitioner Dean J. Wingers, who was then incarcerated at the
Chippewa Valley Correctional Treatment Facility, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, seeking relief from two separate but related state court convictions.
Wingers’ first conviction was for counts of manufacturing and possessing drug paraphernalia to
manufacture methamphetamine, and felony bail jumping. His second conviction was for one count
of felony intimidation of a witness. He was ultimately sentenced to 20 years of initial confinement
and 15 years extended supervision. Wingers has since been released but remains “in custody” for
purposes of the habeas corpus statute as he is subject to extended supervision.

Jones v.

Cunningham, 371 U.S. 236, 242, (1963). On initial review, the court noted that it appeared the
petition was time-barred but was unable to make a determination on the record before it.
Respondent now moves to dismiss the petition on the ground that it is time-barred. For the reasons
that follow, Respondent’s motion will be granted.

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Because Petitioner has been released on extended supervision, the Clerk is directed to
amend the docket to reflect the proper Respondent: Lance Wiersma, Administrator of the
Division of Community Corrections of the Wisconsin Department of Corrections.

The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-year statute
of limitations for filing a habeas petition in federal court. 28 U.S.C. § 2244(d). A petition that is
filed after the one-year period is time-barred and must be dismissed. Id. Under AEDPA, the oneyear period generally begins to run on “the date on which judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A);
Dodd v. United States, 545 U.S. 353, 357 (2005). AEDPA, however, also allows for tolling of the
one-year 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 claim is pending.” Id.
§ 2244(d)(2). But the time period is not tolled by post-conviction or collateral review that is
commenced after the one-year period’s expiration. De Jesus v. Acevedo, 567 F.3d 941, 943 (7th
Cir. 2009).
A court may also equitably toll the one-year period. “[E]quitable tolling is granted
sparingly only when extraordinary circumstances far beyond the litigant's control prevented timely
filing.” Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir. 2010) (citing other sources). To establish
“extraordinary circumstances,” a petitioner must show “‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely
filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005)).
Thus, the court must determine when Wingers’ convictions became final such that the
statute of limitations began to run, and also if the one-year period was tolled pursuant to 28 U.S.C.
§ 2244(d)(2) or as a matter of equity.
Wingers’ first judgment of conviction was entered on February 4, 2008. Dkt. No. 13-1 at
4–6. After the Wisconsin Court of Appeals granted two extensions of time, Wingers’ deadline to

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file a post-conviction motion or notice of appeal was December 19, 2008. State v. Dean J. Wingers
Appeal

Number

2008XX903-CR,

Wis.

Ct.

Sys.

Sup.

Ct.

&

Ct.

App.

Access,

https://wscca.wicourts.gov (last visited Nov. 19, 2024)); see also Wis Stat. § 974.02. Wingers
missed that deadline. Thus, Wingers’ first conviction became final on December 20, 2008—the
day after the applicable deadline was missed. See Farmer v. Litscher, 303 F.3d 840 845–46 (7th
Cir. 2002). Wingers’ habeas clock began running the same day.
The clock ran for 189 days until June 27, 2009, when Wingers filed a motion to request
early eligibility for Wisconsin’s Earned Release Program (ERP). See State of Wisconsin v. Dean
J. Wingers, Wis. Cir. Ct. Access, https://wcca.wicourts.gov (last visited Nov. 20, 2024).
Respondent argues that even assuming that this motion qualifies as “State post-conviction or other
collateral review” under 28 U.S.C. § 2244(d)(2), Wingers’ habeas petition would still be fatally
late because it would only toll the one-year limitation period by the two months it took the trial
court to deny his request. Respondent is correct. Wingers’ petition is late even if his motion
requesting early eligibility for the ERP did toll the one-year limitation period. But it did not.
The court looks to Wisconsin law to determine whether a given motion is an application
for post-conviction or collateral review. See Carey v. Saffold, 536 U.S. 214, 223 (2002). Wis.
Stat. § 974.06 governs post-conviction and collateral review and allows a defendant to “move the
court . . . to vacate, set aside or correct [a] sentence.” Wis. Stat. § 974.06(1). The Supreme Court
of Wisconsin has “repeatedly held that postconviction review under § 974.06 is applicable only to
jurisdiction or constitutional matters or to errors that go directly to the issue of the defendant’s
guilt.” Cresci v. State, 89 Wis. 2d 495, 278 N.W.2d 850, 855 (1979) (cleaned up) (citing another
source).

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Here, Wingers’ June 27, 2009 motion requesting early eligibility did not seek to address
an error directly related to his guilt; rather, the motion sought to make him eligible for an early
release mechanism. See State v. Lynch, 2006 WI App 231, ¶¶ 18–20, 297 Wis. 2d 51, 724 N.W.2d
656 (discussing the purposes of the ERP); ABOUT THE EARNED RELEASE PROGRAM, Wis. Dep’t of
Corr., https://doc.wi.gov/Documents/TownHalls/About/About%20ERP.pdf (last visited Nov. 20,
2024). Consequently, Wingers’ motion did not toll his habeas clock, which continued to run till
its expiration on December 20, 2009.
Wingers’ second judgment of conviction was entered on February 28, 2008. Dkt. No. 131 at 2–3. Wingers did not file a notice of intent to file a post-conviction motion or notice of appeal
within the time required by Wis. Stat. § 974.02. See also Wis. Stat. § 809.30(2)(b). Therefore, his
conviction became final on March 19, 2008. Farmer, 303 F.3d at 845–46. Over the next year,
Wingers did not file any applications for post-conviction or collateral review. Thus, the period of
limitation ran on March 19, 2009.
Wingers is also not entitled to equitable tolling. Nothing in the record permits the court to
conclude that Wingers faced any impediment to appeal or that the factual predicates of his claims
are newly discovered. While Wingers does discuss the merits of his claims and refers to his 10th
grade education level and history of head injuries, he fails to state why he could not bring his
claims earlier. Additionally, Winger’s lack of education and alleged mental infirmity are not
sufficiently “extraordinary.” Montenegro v. United States, 248 F.3d 585, 594 (7th Cir. 2001),
overruled on other grounds by Ashley v. United States, 266 F.3d 671 (7th Cir. 2001). The court
therefore cannot conclude that the circumstances of this case warrant applying the doctrine of
equitable tolling.

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Wingers did not file his federal habeas petition until February 12, 2024, some 14 years
after the one-year statute of limitations had run on both of his pertinent convictions. Neither
statutory nor equitable tolling are appropriate. Accordingly, Wingers’ petition is time-barred and
must be dismissed. Respondent’s motion to dismiss (Dkt. No. 12) is therefore GRANTED.
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. 473, 484 (2000) (internal quotation marks omitted). The
court concludes that its decision is neither incorrect nor debatable among jurists of reason.
Accordingly, a certificate of appealability will be denied.
This order and the judgment to follow are final. Petitioner may appeal this court’s decision
to the Court of Appeals for the Seventh Circuit by filing in this court a notice of appeal within 30
days of the entry of judgment. See Fed. R. App. P. 3, 4. In the event Petitioner decides to appeal,
he should also request that the court of appeals issue a certificate of appealability. Fed. R. App. P.
22(b).
SO ORDERED at Green Bay, Wisconsin this 22nd day of November, 2024.
s/ William C. Griesbach
William C. Griesbach
United States District Judge

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