Grosskopf, Darrin v. Pollard, William

Filing 9

ORDER that petitioner Darrin Grosskopf may have until December 16, 2011, to file a supplement to his petition identifying the date he learned that officials destroyed the biological materials he believes they should have preserved. In the alternative , petitioner may file supplemental materials showing that he is entitled to equitable tolling under the standard described in this order. If petitioner does not respond by December 16, 2011, I will dismiss the petition for petitioners failure to prosecute it. Signed by District Judge Barbara B. Crabb on 12/2/2011. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - DARRIN D. GROSSKOPF,
ORDER
Petitioner,
11-cv-667-bbc
v.
WILLIAM POLLARD, Warden,
Waupun Correctional Institution,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Petition Darrin Grosskopf has filed a petition for a writ of habeas corpus under 28
U.S.C. 2254 in which he challenges a 2002 conviction for first-degree intentional homicide.
The jury rejected petitioner’s theory at trial that he stabbed the victim in self defense in the
midst of a sexual assault.
Petitioner raises various claims that he groups under five headings: (1) “equal
protection of the law erroneous exercise of discretion”; (2) “prosecutorial misconduct,
selective and vindictive prosecution”; (3) “equal protection of the law, bad faith upon law
enforcement”; (4) “ineffective assistance of pre-trial and trial counsel”; and (5) “ineffective
assistance of counsel on direct appeal.” He has paid the $5 filing fee, making his petition

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ready for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases.
Because petitioner’s conviction is more than nine years old, a threshold question is
whether the petition is timely. Under 28 U.S.C. § 2244(d)(1), the limitations period is one
year from the latest of four events: (a) the date his conviction became final on direct appeal;
(b) the date any impediments to filing imposed by the state were removed; (c) the date a new
right was recognized by the Supreme Court; and (d) the date petitioner could have
discovered through due diligence the facts underlying his claim. The limitations period is
tolled during the pendency of "a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim." 28 U.S.C. § 2244(d)(2).
Because petitioner did not a seek a petition for certiorari with the United States
Supreme Court, his conviction became final on direct review 90 days after the Wisconsin
Supreme Court denied his petition for review. Jones v. Hulick, 449 F.3d 784, 787 (7th Cir.
2006). Petitioner says that the state supreme court denied his petition in “January 2004,”
but the online docket for petitioner’s appeal shows that it was April 20, 2004, so I will give
him the benefit of the later date. This means that the limitations period began running in
July 2004.
Petitioner filed a motion in the trial court seeking collateral review under Wis. Stat.
974.06 in December 2004. After the trial court and the court of appeals denied relief,
petitioner filed a petition for review with the Wisconsin Supreme Court, which denied the

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petition on January 9, 2007.
On January 22, 2008, petitioner filed a petition for a writ of habeas corpus with the
Wisconsin Court of Appeals, but the court dismissed the petition on April 23, 2008, after
he voluntarily withdrew it.
On November 12, 2008, petitioner filed another motion under Wis. Stat. § 974.06.
The trial court denied the motion on the ground that petitioner could have raised the claims
in his motion on direct appeal or in his first § 974.06 motion. In a decision dated March
2, 2010, the Wisconsin Court of Appeals agreed with the trial court, but concluded that
petitioner could raise his claim that law enforcement officials destroyed “certain biological
materials” because petitioner did not learn that the evidence had been destroyed “until
2008,” well after petitioner filed his direct appeals or previous § 974.06 motions. However,
the court of appeals rejected that claim on the merits. The Wisconsin Supreme Court denied
his petition for review on October 27, 2010.
Petitioner filed this case on September 28, 2011.
Well more than one year has passed since petitioner’s conviction became final in July
2004, even if I subtract all of the time that petitioner was pursuing collateral review in state
court under § 2244(d)(2). Thus, petitioner’s claims are not timely under § 2244(d)(1)(A).
However, the Wisconsin Court of Appeals concluded that petitioner did not discover the
facts underlying his claim regarding destruction of evidence until sometime in 2008,

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suggesting that § 2244(d)(1)(D) could apply.
It is not clear when in 2008 petitioner learned that the evidence had been destroyed
because the Wisconsin Court of Appeals was not any more specific in its opinion and
petitioner does not identify the date specifically in his petition. However, petitioner suggests
that he may have learned about this sometime before April 23, 2008, which is when he says
his petition for a writ of habeas corpus “was voluntarily withdrawn . . . after the discovery
of new undiscovered evidence.” Petitioner does not identify any new evidence he acquired
other than that related to his destruction of evidence claim.
If petitioner discovered the facts underlying his destruction of evidence claim in April
2008, that claim is untimely even under § 2244(d)(1)(D) because more than one year would
have passed between that time and when he filed this petition, even if I do not consider the
time for which his November 2008 § 974.06 motion was pending.
Accordingly, I will give petitioner an opportunity to supplement his petition to
identify the date he learned that officials destroyed the biological materials he believes they
should have preserved. Alternatively, if petition believes he is entitled to equitable tolling,
he should submit a brief and any necessary evidentiary materials showing (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, 130 S. Ct. 2549, 2562-63 (2010). If
petitioner pursues that route, he should be as specific as possible in explaining what

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particular obstacles prevented him from filing earlier than he did.

ORDER
IT IS ORDERED that petitioner Darrin Grosskopf may have until December 16,
2011, to file a supplement to his petition identifying the date he learned that officials
destroyed the biological materials he believes they should have preserved. In the alternative,
petitioner may file supplemental materials showing that he is entitled to equitable tolling
under the standard described in this order. If petitioner does not respond by December 16,
2011, I will dismiss the petition for petitioner’s failure to prosecute it.
Entered this 2d day of December, 2011.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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