Seehafer, Michael v. Wis Department of Corrections

Filing 25

ORDER denying 1 Petition for Writ of Habeas Corpus and dismissing this matter. A certificate of appealability is DENIED. Signed by District Judge William M. Conley on 6/20/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MICHAEL R. SEEHAFER,
Petitioner,

OPINION and ORDER

v.

15-cv-689-wmc

WISCONSIN DEPARTMENT OF CORRECTIONS,
Respondent.
On January 7, 2010, petitioner Michael R. Seehafer was convicted of one count of
operating while under the influence in the Circuit Court for Marathon County in case no.
07CF699. He now seeks a petition for a writ of habeas corpus under 28 U.S.C. § 2254.
Seehafer raised four grounds for relief in his petition, but the court dismissed claims 3 and
4 after Seehafer failed to show that those claims were not barred by the doctrine of
procedural default. This left the following two claims: (1) the state failed to turn over
exculpatory evidence; and (2) the state lacked probable cause or reasonable suspicion to
stop or detain Seehafer, and the trial court improperly denied his motion to suppress
evidence obtained as a result of the illegal stop.
The state has now filed a motion to dismiss claims 1 and 2 on the ground that they
are untimely under the applicable one-year statute of limitations imposed by 28 U.S.C. §
2244(d)(1).

Although Seehafer filed an opposition brief, his brief ignores the state’s

timeliness argument completely. The court concludes that the state’s argument is correct,
however, meaning that Seehafer’s petition must be dismissed as untimely.

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FACTS1
On January 7, 2010, Michael Seehafer was convicted in Marathon County Circuit
Court on his no contest plea to sixth-offense operating while under the influence. See State
v. Seehafer, Case No. 07CF699 (Marathon Cty. Cir. Ct.) Seehafer appealed his conviction
to the Wisconsin Court of Appeals. The court of appeals affirmed his conviction on
February 8, 2011. (See dkt. #14-2.) Seehafer then petitioned the Wisconsin Supreme
Court for review. The court denied his petition on May 24, 2011. (See dkt. #14-3.)
Seehafer filed a petition for certiorari in the United States Supreme Court, which was
denied on December 5, 2011. See Seehafer v. Wisconsin, 132 S. Ct. 815 (Mem) (2011).
After the United States Supreme Court denied Seehafer’s petition for certiorari,
Seehafer filed several motions in Marathon County Circuit Court challenging his
conviction. The first motions were filed on April 19, 2012. The circuit court denied the
motions on April 23, 2012. (See dkt. #14-4, which is a printout from Wisconsin’s Circuit
Court Access System showing the several motions Seehafer filed.) Seehafer then filed a
motion for sentence modification in the circuit court on August 13, 2012, a motion for a
new presentence report and resentencing on August 28, 2013, and a motion for
postconviction relief on November 6, 2013.

(See id.)

The circuit court denied the

motions at a November 19, 2013 hearing and entered a written order on its decisions on
February 10, 2014. (See id.)

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The following facts are taken from the petition and the state court records provided by
petitioner and the state.
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Seehafer filed another postconviction motion and a supporting brief in the circuit
court on March 5 and 6, 2014. (See id.) The court held a hearing on the motion on
March 12, 2014, and denied the motion orally and by written order on March 28, 2014.
(See id.) Seehafer appealed the court’s order to the Wisconsin Court of Appeals, which
affirmed on April 21, 2015. (See dkt. #14-6.) The Wisconsin Supreme Court denied
Seehafer’s petition for review on September 9, 2015. (See dkt. #14-7.)
Seehafer filed his habeas petition in this court on October 27, 2015.

OPINION
I.

Timeliness
Under 28 U.S.C. § 2244(d)(1)(A), a petitioner seeking to file a federal habeas

petition challenging a state court conviction must do so within one year of “the date on
which judgment in the state case became final by the conclusion of direct review or the
expiration of the time for seeking such review.” (Other statutory subsections prescribe
alternative dates for the start of the limitations period, 28 U.S.C. § 2244(d)(1)(B)-(D), but
petitioner does not suggest than any of these sections apply to him and the court cannot
conceive of any basis for applying them in this case.) In this case, petitioner’s judgment
of conviction became final on November 5, 2011, when the United State Supreme Court
denied his petition for a writ of certiorari on his direct appeal. See Clay v. United States,
537 U.S. 522, 527 (2003) (criminal conviction is final under habeas statute of limitations

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when Supreme Court issues decision on merits or denies petition for writ of certiorari, or
when the time for filing for certiorari expires).
Petitioner’s one-year habeas clock continued to run until April 19, 2012, when
petitioner filed a postconviction motion in state circuit court. By that time, 166 days had
elapsed since the statute of the limitations period began running. Under 28 U.S.C. §
2244(d)(2), time is tolled, that is, it does not count against the one-year statutory period,
while a properly filed application for post-conviction relief is pending in state court.
Petitioner’s state court motion was pending for only 5 days; it was denied on April 23,
2012. Petitioner did not appeal the denial of that motion, so his habeas clock resumed
on April 24, 2012, the day after his state court motion was no longer “pending.” His
habeas clock expired 199 days later, on November 9, 2012.
Although petitioner filed several more postconviction motions in state court, he filed
them after his habeas clock had already expired. Specifically, he filed nothing challenging
his conviction between April 19, 2012, when he filed his first motion for postconviction
relief, and August 7, 2013, when he filed a motion for sentence modification. By that
time, however, his habeas clock had been expired for approximately 8 months. Thus,
these later-filed motions did not toll his habeas clock. When Seehafer filed his petition in
October 2015, his habeas clock had been expired for more than two years.
In some extraordinary situations, the one-year deadline may be tolled under the
doctrine of equitable tolling. That doctrine applies if a petitioner can show that (1) he
has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in

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his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010) (internal
quotation marks omitted). Although the state raised the issue of equitable tolling in its
motion to dismiss, petitioner made no attempt to argue that equitable tolling is warranted
in this case. In fact, petitioner’s opposition brief appears to be a copy of a brief he filed
previously in the Wisconsin Court of Appeals, and fails to address any of the timeliness
issues raised by the state. Accordingly, all of the evidence and argument presented to the
court confirms that Seehafer’s petition is untimely and must be dismissed.
II.

Certificate of Appealability.
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. A
certificate of appealability will not issue unless the petitioner makes “a substantial showing
of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires a petitioner
to demonstrate “that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 282 (2004)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under the controlling standard,
this requires a petitioner to show “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).

Although the rule allows a court to ask the parties to submit arguments on whether
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a certificate should issue, it is not necessary to do so in this case. No reasonable jurist
would debate whether petitioner’s claims are untimely.

Therefore, no certificate of

appealability will issue.
ORDER
IT IS ORDERED that petitioner Michael R. Seehafer’s petition for a writ of habeas
corpus under 28 U.S.C. § 2254 is DENIED and this matter is DISMISSED. 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.
Dated this 20th day of June, 2017.
BY THE COURT:
/s/
________________________
WILLIAM M. CONLEY
District Judge

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