Homelsey, Charles v. Dittman, Michael

Filing 39

Transmission of Notice of Appeal, Docketing Statement, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 36 Notice of Appeal, (Attachments: # 1 Docketing Statement, # 2 Order, # 3 Judgment, # 4 Docket sheet) (jef),(ps)

U.S. District Court
Western District of Wisconsin (Madison)
CIVIL DOCKET FOR CASE #: 3:16−cv−00047−bbc

Homelsey, Charles v. Dittman, Michael
Assigned to: District Judge Barbara B. Crabb
Referred to: Magistrate Judge Stephen L. Crocker
Cause: 28:2254 Petition for Writ of Habeas Corpus (State)

Date Filed: 01/20/2016
Date Terminated: 02/24/2017
Jury Demand: None
Nature of Suit: 530 Habeas Corpus
(General)
Jurisdiction: Federal Question

Petitioner
Charles J. Homelsey aka Charles J.
Mayberry
also known as
Charles J. Mayberry

represented by Charles J. Homelsey aka Charles J.
Mayberry
#248435−A
Columbia Correctional Institution
2925 Columbia Drive
P.O. Box 900
Portage, WI 53901−0900
PRO SE
Reed W. Cornia
Cornia Law, LLC
1213 North Sherman Avenue
Box 354
Madison, WI 53704
(608) 242−0096
Fax: (608) 242−0098
Email: [e-mail]
TERMINATED: 03/24/2017
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

V.
Respondent
Michael Dittman

represented by Gregory M. Weber
Wisconsin Department of Justice
P.O. Box 7857
Madison, WI 53707
608−266−3935
Fax: 608−266−9594
Email: [e-mail]
TERMINATED: 03/28/2016
LEAD ATTORNEY
Daniel J. O'Brien
Wisconsin Department of Justice
17 W. Main Street
P.O. Box 7857
Madison, WI 53707−7857
(608) 266−9620
Fax: (608) 266−9594
Email: [e-mail]
ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

01/20/2016

1 Petition for Writ of Habeas Corpus − State, filed by Charles J. Homelsey. (Case
non−randomly assigned to District Judge Barbara B. Crabb.) (Attachments:
# 1 Exhibit 1 − Judgement of Conviction,
# 2 Exhibit 2 − Wis. Appeals Ct. decision, 7/21/11,
# 3 Exhibit 3 − 12−cv−835−bbc decision, 1/7/13,
# 4 Exhibit 4 − Medical alert,
# 5 Exhibit 5 − Motion hearing transcripts, 08cf958,
# 6 Exhibit 6 − Order, 08cf958,
# 7 Exhibit 7 − Jury trial p.m. transcripts, 11/6/08,
# 8 Exhibit 8 − Competency hearing transcripts, 1/2/99,
# 9 Exhibit 9 − Wis. Ct. of Appeals decision, 2/12/15,
# 10 Exhibit 10 − Wis. Supreme Ct. denial, 11/4/15,
# 11 Exhibit 11 − Robert Starr affidavit, 1/13/09,
# 12 Exhibit 12 − Notice of judge assignment, 08cf958,
# 13 Exhibit 13 − Legal action letter, and 92cv−587−s Oskar McMillian order,
# 14 Cover Letter,
# 15 Envelope) (jef) (Entered: 01/20/2016)

01/20/2016

2 Letter regarding the filing fee from Charles Mayberry aka Charles Homelsey.
(Attachments:
# 1 Disbursement request,
# 2 Envelope) (jef),(ps) (Entered: 01/21/2016)

02/08/2016

3 ORDER on ifp request: Petitioner to submit $5 fee or motion for ifp/Trust Fund
Account Statement by 2/26/2016. Signed by Magistrate Judge Peter A. Oppeneer on
2/8/2016. (jef),(ps) (Entered: 02/08/2016)

02/16/2016
03/15/2016

Filing fee received: $5.00, receipt number 34690025236. (nln),(ps) (Entered:
02/17/2016)
4 Order to Show Cause Issued. Materials served on WI Department of Justice pursuant
to informal service agreement.
Petitioner's claims that the state courts erred in rejecting his request for a new trial
based upon newly−discovered evidence (Ground One) and in declining to appoint him
counsel at his post−conviction hearing (Ground Four) are DISMISSED for failure to
state a constitutional claim. Petitioner's motion for the appointment of counsel is
DEFERRED until after the state files its answer. Not later than April 15, 2016,
petitioner must submit a six−month trust fund account statement so that the court may
make a determination regarding his financial eligibility for appointed counsel. Signed
by District Judge Barbara B. Crabb on 3/15/2016. (jef),(ps) (Entered: 03/15/2016)

03/17/2016

5 Acceptance of Service by DOJ on behalf of Respondent Michael Dittman. (Weber,
Gregory),(ps) (Entered: 03/17/2016)

03/17/2016

6 Notice that for the remainder of this lawsuit petitioner need only send a copy of his
filings in this case to the court pursuant to an informal service agreement with the
Wisconsin Department of Justice. (elc),(ps) (Entered: 03/17/2016)

03/25/2016

7 Notice of Appearance filed by Daniel J. O'Brien for Respondent Michael Dittman,
(Attachments:
# 1 Certificate of Service) (O'Brien, Daniel),(ps) Modified on 3/27/2016. (lak)
(Entered: 03/25/2016)

03/28/2016

8 Prisoner Trust Fund Account Statement / Motion for Counsel by Petitioner Charles J.
Homelsey. (Attachments:
# 1 Average 6−month balance and deposits,
# 2 Envelope) (jef),(ps) (Entered: 03/28/2016)

04/14/2016

9 MOTION TO DISMISS by Respondent Michael Dittman, (Attachments:
# 1 Certificate of Service) (O'Brien, Daniel),(ps) (Entered: 04/14/2016)

04/14/2016

10 Brief in Support of 9 Motion to Dismiss With Attached Exhibits A−J by Respondent
Michael Dittman (Attachments:
# 1 Exhibit A − Wisconsin Court of Appeals' Decision dated July 21, 2011, affirming
the circuit court's judgment and order in State v. Charles J. Homesley, a/k/a Charles J.
Mayberry, Appeal No. 2010AP2013−CR,
# 2 Exhibit B − Wisconsin Supreme Court Order dated December 5, 2011, denying

petition for review in State v. Homesley, Appeal No. 2010AP2013−CR,
# 3 Exhibit C −Wisconsin Court of Appeals' Opinion and Order dated February 12,
2015, summarily affirming the circuit court's order in State v. Charles J. Homelsey,
a/k/a Charles J. Mayberry, Appeal No. 2013AP2451,
# 4 Exhibit D − Wisconsin Supreme Court Order dated November 4, 2015, denying
petition for review in State v. Homelsey, Appeal No. 2013AP2451,
# 5 Exhibit E − Excerpt from Index of Record, dated June 21, 2010, in State v. Charles
J. Homesley, Dane County Circuit Court Case No. 2008CF958,
# 6 Exhibit F − Wisconsin Circuit Court Access docket in State v. Charles J.
Homesley, Dane County Circuit Court Case No. 2008CF958,
# 7 Exhibit G − U.S. District Court for the Western District of Wisconsin Order dated
January 7, 2013, dismissing Homesley's habeas petition and denying a certificate of
appealability in Charles J. Homesley, a/k/a Charles Mayberry v. Michael Meisner and
Hazel Brown, Case No. 12−cv−835−bbc,
# 8 Exhibit H − U.S. District Court for the Western District of Wisconsin Order dated
March 26, 2013, denying Homesley's motion for relief under Fed. R. Civ. P. 60, in
Charles J. Homesley, a/k/a Charles Mayberry v. Michael Meisner and Hazel Brown,
Case No. 12−cv−835−bbc,
# 9 Exhibit I − Wisconsin Supreme Court Order dated August 3, 2012, denying the
motion to reconsider its December 5, 2011, order in State v. Homesley, Appeal No.
2010AP2013−CR,
# 10 Exhibit J − Order denying motion for reconsideration, dated November 1, 2013,
in State v. Charles Homesly, Dane County Circuit Court Case No. 08CF958,
# 11 Certificate of Service) (O'Brien, Daniel),(ps) (Entered: 04/14/2016)
04/14/2016

Set Briefing Deadlines as to 9 MOTION TO DISMISS . Petitioner's Brief in
Opposition due 5/4/2016. Respondent's Brief in Reply due 5/16/2016. (nln),(ps)
(Entered: 04/14/2016)

04/18/2016

11 Prisoner Trust Fund Account Statement by Petitioner Charles J. Homelsey aka Charles
J. Mayberry. (Attachments:
# 1 Cover Letter,
# 2 Envelope) (jef),(ps) (Entered: 04/18/2016)

04/18/2016

12 Letter to Judge Crabb regarding recent actions by CCI officials by Petitioner Charles J.
Homelsey aka Charles J. Mayberry. (Attachments:
# 1 Envelope) (jef),(ps) (Entered: 04/18/2016)

04/20/2016

13 ORDER denying as moot petitioner's 12 motion. Signed by District Judge Barbara B.
Crabb on 4/20/2016. (jef),(ps) (Entered: 04/20/2016)

05/06/2016

14 Motion for evidentiary hearing into continuing harassment of mentally disabled
prisoner needed legal assistance to respond to motion to dismiss by Petitioner Charles
J. Homelsey aka Charles J. Mayberry. (Attachments:
# 1 Attach. 1 − Interview/information request,
# 2 Attach. 2 − Interview/information request,
# 3 Attach. 3 − Inmate re−classification report,
# 4 Attach. 4 − Letter and order re: Oscar McMillian,
# 5 Cover Letter,
# 6 Envelope) (jef),(ps) Modified on 5/16/2016 (jef). (Entered: 05/06/2016)

05/06/2016

Disregard briefing; motion incomplete. Briefing will be re−set upon receipt of page 3
of dkt. 14 motion. (jef). (Entered: 05/06/2016)

05/06/2016

15 Letter from Clerk's Office regarding missing page 3 of dkt. 14 motion from petitioner.
(jef),(ps) (Entered: 05/06/2016)

05/16/2016

16 Motion for evidentiary hearing into continuing harassment of mentally disabled
prisoner needed legal assistance to respond to motion to dismiss by Petitioner Charles
J. Homelsey aka Charles J. Mayberry. (Attachments:
# 1 Attach. 1 − Interview/information request,
# 2 Attach. 2 − Interview/information request,
# 3 Attach. 3 − Inmate re−classification report,
# 4 Attach. 4 − Letter and order re: Oscar McMillian,
# 5 Cover letter to Judge Crabb,
# 6 Cover letter to Clerk,
# 7 Envelope) (jef),(ps) Same as dkt. 14 but with page 3 included. (jef) (Entered:

05/16/2016)
05/16/2016

Set Briefing Deadlines as to 16 Motion for evidentiary hearing into continuing
harassment of mentally disabled prisoner needed legal assistance to respond to motion
to dismiss. Respondent's Brief in Opposition due 5/23/2016. Petitioner's Brief in Reply
due 6/2/2016. (jef),(ps) (Entered: 05/16/2016)

05/19/2016

17 Brief in Opposition by Respondent Michael Dittman re: 16 Motion for Hearing, filed
by Charles J. Homelsey aka Charles J. Mayberry, (Attachments:
# 1 Certificate of Service) (O'Brien, Daniel),(ps) Modified on 5/19/2016. (lak)
(Entered: 05/19/2016)

06/08/2016

18 Brief in Reply by Petitioner Charles J. Homelsey aka Charles J. Mayberry in Support
of 16 Motion for Hearing. (Attachments:
# 1 Attach. 1 − Milwaukee Journal Sentinel Article, A travesty at DOC,
# 2 Attach. 2 − USA Today Article, Justices' ruling favors disabled,
# 3 Attach. 3 − Adult Conduct Report,
# 4 Attach. 4 − Letter from Mr. Oscar B. McMillian to Ms. Cathy Jess dated 4/10/16,
# 5 Attach. 5 − Letter from Mr. Oscar B. McMillian to Mr. Jon Litscher dated 3/09/16,
# 6 Attach. 6 − Letter from Administrator James R. Schwochert to Oscar McMillian
dated 4/20/16,
# 7 Attach. 7 − Letter from Assistant Administrator Marc W. Clements to Oscar
McMillian dated 4/12/16,
# 8 Attach. 8 − Appeal of Adjustment Committee of Hearing Officer's Decision,
# 9 Attach. 9 − Interview/Information Request dated 5/29/16,
# 10 Cover Letter,
# 11 Envelope) (nln),(ps) (Entered: 06/08/2016)

06/14/2016

19 ORDER granting request by petitioner Charles Homelsey a/ka Charles Mayberry for
assistance in recruiting counsel. Petitioner's "motion for an evidentiary hearing into
continuing harassment," dkt. # 16 , is DENIED as moot. All remaining deadlines are
STRICKEN pending recruitment of counsel for plaintiff. If I find counsel willing to
represent plaintiff, I will advise the parties of that fact and set a new schedule. Signed
by District Judge Barbara B. Crabb on 6/14/2016. (jef),(ps) (Entered: 06/14/2016)

06/16/2016

20 ORDER that the parties may have until July 1, 2016, to confer and then inform the
court whether respondent Michael Dittman will renew his motion to dismiss and, if so,
what the appropriate briefing schedule should be. If the parties cannot agree on a
proposed schedule, each party should submit his own proposal, along with his reasons
for choosing that schedule. If the parties do not respond by July 1, 2016, I will direct
respondent to file an answer to the petition and set a schedule for briefing the merits of
the petition. Signed by District Judge Barbara B. Crabb on 6/16/2016. (jef),(ps)
(Entered: 06/16/2016)

06/28/2016

21 Response re: 20 Order by Respondent Michael Dittman. (O'Brien, Daniel),(ps)
(Entered: 06/28/2016)

07/29/2016

22 Copy of letter written by Leonardo Juarez on behalf of petitioner Charles J. Homelsey
aka Charles J. Mayberry addressed to Attorney Reed Cornia requesting status update.
(Attachments:
# 1 Envelope) (nln),(ps) (Entered: 07/29/2016)

08/26/2016

23 MOTION TO DISMISS by Respondent Michael Dittman. (O'Brien, Daniel),(ps)
(Entered: 08/26/2016)

08/26/2016

24 Supplemental Brief in Support of 23 Motion to Dismiss by Respondent Michael
Dittman (Attachments:
# 1 Exhibit A − COA Brief of Plaintiff−Respondent Dated 4−25−14, with Unredacted
Exhibits) (O'Brien, Daniel),(ps) Modified on 8/28/2016. (lak) (Entered: 08/26/2016)

08/26/2016

10/11/2016

Set Briefing Deadlines as to 23 MOTION TO DISMISS . Petitioner's Brief in
Opposition due 10/11/2016. Respondent's Brief in Reply due 10/26/2016. (nln),(ps)
(Entered: 08/26/2016)
25 Motion for Extension of Time to file Response Brief by Petitioner Charles J. Homelsey
aka Charles J. Mayberry. Motions referred to Magistrate Judge Stephen L. Crocker.
(Cornia, Reed),(ps) (Entered: 10/11/2016)

10/12/2016

26 ** TEXT ONLY ORDER **
ORDER granting 25 Motion for Extension of Time. Petitioner's Brief in Opposition
due 10/25/2016. Respondent's Brief in Reply due 11/9/2016. Signed by Magistrate
Judge Stephen L. Crocker on 10/12/2016. (nln),(ps) (Entered: 10/12/2016)

10/25/2016

27 Second Motion for Extension of Time to File Reply Brief by Petitioner Charles J.
Homelsey aka Charles J. Mayberry. Motions referred to Magistrate Judge Stephen L.
Crocker. (Cornia, Reed),(ps) (Entered: 10/25/2016)

10/25/2016

28 ** TEXT ONLY ORDER **
ORDER granting 27 Motion for Extension of Time. Petitioner's Brief in Opposition
due 10/27/2016. Respondent's Brief in Reply due 11/14/2016. Signed by Magistrate
Judge Stephen L. Crocker on 10/25/2016. (nln),(ps) Modified docket text on
10/25/2016 (nln). (Entered: 10/25/2016)

10/27/2016

29 Brief in Opposition by Petitioner Charles J. Homelsey aka Charles J. Mayberry re: 23
Motion to Dismiss filed by Michael Dittman. (Cornia, Reed),(ps) Modified on
10/28/2016: Attachment B is unredacted. (lak) Modified on 11/3/2016: Two e−mails
sent to counsel re: refiling. (lak) (Entered: 10/27/2016)

11/11/2016

30 Disregard. See 31 . Modified on 11/15/2016. (lak) (Entered: 11/11/2016)

11/14/2016

31 Brief in Reply by Respondent Michael Dittman in Support of 23 Motion to Dismiss,
(Attachments:
# 1 Exhibit A − Westlaw Summary of Carpenter v. Douma, No. 15−1688) (O'Brien,
Daniel),(ps) Modified on 11/15/2016. (lak) (Entered: 11/14/2016)

01/20/2017

32 Letter Requesting Status Update and Docket Sheet by Petitioner Charles J. Homelsey
aka Charles J. Mayberry. (Attachments:
# 1 Envelope) (elc),(ps) (Entered: 01/20/2017)

01/20/2017

33 Letter from clerk's office in response to 32 Letter Requesting Status Update and
Docket Sheet. (elc),(ps) (Entered: 01/20/2017)

02/24/2017

34 ORDER granting respondent's 23 motion to dismiss and dismissing petitioner's 1
petition for a writ of habeas corpus. Signed by District Judge Barbara B. Crabb on
2/24/2017. (jef),(ps) (Entered: 02/24/2017)

02/24/2017

35 JUDGMENT entered granting respondent Michael Dittman's motion to dismiss and
dismissing the case. Signed by Peter A. Oppeneer, Clerk of Court on 2/24/2017.
(jef),(ps) (Entered: 02/24/2017)

03/24/2017

36 NOTICE OF APPEAL by Petitioner Charles J. Homelsey aka Charles J. Mayberry as
to 34 Order, 35 Judgment. In forma pauperis requested. Docketing Statement filed.
(Attachments:
# 1 Docketing Statement,
# 2 Cover Letter,
# 3 Envelope) (jef),(ps) (Entered: 03/24/2017)

03/24/2017

37 Motion for Certificate of Appealability by Petitioner Charles J. Homelsey aka Charles
J. Mayberry. (jef),(ps) (Entered: 03/24/2017)

03/24/2017

38 Appeal Information Packet. (jef),(ps) (Entered: 03/24/2017)