Stewart, David v. Pugh, Jeffery

Filing 9

Transmission of Notice of Appeal, Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 7 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Docket Sheet) (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DAVID C. STEWART,
OPINION AND ORDER

Petitioner,

l 3-cv-14-wmc

v.

JEFFERY PUGH, Warden,
Stanley Correctional Institution,
Respondent.
Petitioner David C. Stewart is currently incarcerated by the Wisconsin
Department of Corrections at the Stanley Correctional Institution. Stewart now seeks a
writ of habeas corpus under 28 U.S.C. § 2254, challenging two state-court convictions
from 2003. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts, the petition will now be dismissed.
FACTS
In April 2003, Stewart entered pleas of "no contest" to charges of child abuse and
first-degree sexual assault of a child in Dane County Case Nos. 2002CF1588 &
2002CF1589. The circuit court found Stewart guilty as charged and sentenced him to
serve a total of 18 years in prison.

The Wisconsin Court of Appeals affirmed both

convictions in an unpublished decision and the Wisconsin Supreme Court denied
Stewart's petition for review on June 15, 2006. He did not appeal further by pursuing a
writ of certiorari with the United States Supreme Court.
In October 2007, Stewart filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. In that application, Stewart argued that he was entitled to relief for

the following reasons: ( 1) he was denied effective assistance of counsel; (2) the prosecutor
failed to tum over exculpatory evidence; (3) the trial court altered or breached the plea
agreement by revoking his bond; (4) the plea colloquy was perfunctory and deficient; (5)
both the complaint and the evidence were insufficient to support his conviction; (6) his
conviction was obtained with evidence obtained from an illegal search; and (7) his
"parental rights" were revoked without due process; (8) he was denied effective assistance
of counsel on appeal; (9) the police circumvented "proper procedures for obtaining
evidence"; and ( 10) his plea was not knowingly made because he was not correctly
informed about the potential punishment he faced. On March 18, 2009, the district
court dismissed that petition as barred by the governing one-year statute of limitations.

See Stewart v. Hompe, Civil No. 08-cv-655-slc (W.D. Wis.). Steward did not pursue an
appeal.
On January 30, 2013, Stewart filed a second petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In this application, Stewart contends that he was denied
effective assistance of counsel in connection with his guilty plea because he was not given
correct information about his potential sentence.

He contends further that the

prosecutor "strayed" from the plea agreement and failed to remain neutral during his rearraignment proceeding.
OPINION
Stewart's petition is governed by the Antiterrorism and Effective Death Penalty
Act (the "AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, which was enacted on April
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24, 1996. Under the AEDPA, any "second or successive application" for habeas relief
must be authorized by the court of appeals.

See 28 U.S.C. § 2244(b)(3)(A).

Numerically, second filings only trigger the prohibition against second-or-successive
applications "if they follow a filing that 'counts' as the prisoner's first (and only)
opportunity for collateral review." Vitrano v. United States, 643 F.3d 229, 233 (7th Cir.
2011) (citation omitted).

A prio1 untimely petition counts as such an opportunity

because "a statute of limitations bar is not a curable technical or procedural deficiency
but rather operates as an irremediable defect barring consideration of the petitioner's
substantive claims." Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003).

Because

Stewart attempts to challenge the same conviction that was at issue previously, his
petition qualifies as a second or successive application for habeas relief.
If petitioner believes that he qualifies for an exception to the prohibition against

successive petitions, he must raise this issue with the Court of Appeals for the Seventh
Circuit. This is the statutory limitation put in place by 28 U.S.C. § 2244(b)(3), which
"creates a 'gatekeeping' mechanism for the consideration of second or successive [habeas]
applications in the district court." Felker v. Turpin, 518 U.S. 651, 657 (1996). Absent
approval from the Seventh Circuit, this court has no authority to consider the petition.
Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996) ("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 its filing.").

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Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue
or deny a certificate of appealability when entering a final order adverse to petitioner. 28
U.S.C. § 2253(c)(2); Yennard v. Dretke, 542 U.S. 274, 282 (2004). Generally, this means
that "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." Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (internal quotations and citations omitted). To the extent that this
order qualifies as "final" for purposes of Rule 11, the court declines to issue a certificate
of appealability because reasonable jurists would not debate whether the petition
qualifies as "second or successive" under 28 U.S.C. § 2244(b).
ORDER
IT IS ORDERED that:
1. The federal habeas corpus petition filed by state inmate David C. Stewart is
DISMISSED for lack of authorization as a second or successive application.
2. A certificate of appealability is DENIED. If petitioner wishes he may seek
a certificate from the court of appeals under Fed. R. App. P. 22.
Entered this i,&th day of February, 2014.
BY THE COURT:

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