Smith, Tyrone, et al v. State of Wisconsin Court of Appeals, District One

Filing 18

Transmission of Notice of Appeal, Docketing Statement, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 16 Notice of Appeal. (Attachments: # 1 Docketing Statement, # 2 Order, 5/22/17, # 3 Judgment, 5/22/17, # 4 Order, 7/21/17, # 5 Docket sheet) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
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TYRONE DAVIS SMITH,
OPINION AND ORDER
Petitioner,
17-cv-49-bbc
v.
STATE OF WISCONSIN COURT OF APPEALS,
DISTRICT ONE,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - In an order entered on May 22, 2017, I dismissed the petition for a writ of habeas
corpus that petitioner Tyrone Davis Smith filed under 28 U.S.C. § 2241, challenging his
2007 conviction in the Circuit Court for Milwaukee County for first degree sexual assault
of a child, because § 2254 is the exclusive remedy for a state prisoner challenging the fact or
duration of his confinement. Dkt. #12. Now before the court is petitioner’s motion under
Fed. R. Civ. P. 59(e) to reconsider that ruling. Dkt. #14.
To prevail on a motion for reconsideration under Rule 59, a petitioner must present
newly discovered material evidence or establish a manifest error of law or fact. Oto v.
Metropolitan Life Insurance Co., 224 F.3d 601, 606 (7th Cir. 2000). Petitioner has done
neither and instead repeats many of the allegations made in his petition concerning the
failure of his appellate counsel to raise “meritorious” issues on the direct appeal of his

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conviction.

Because petitioner’s challenges to the evidence presented at trial and his

allegations that his appellate counsel was ineffective for failing to raise those challenges on
appeal affect the fact or duration of his custody, they must be brought under § 2254, and
not § 2241.
Although petitioner asks that he be allowed to challenge the fact and duration of his
confinement under § 2241, based on the holding in Coady v. Vaughn, 251 F.3d 480 (3d Cir.
2001), that case does not support petitioner’s argument. In Vaughn, the Court of Appeals
for the Third Circuit held that a petitioner challenging the execution of his state sentence
must rely on § 2254 and not § 2241. Id. at 485. Petitioner has not cited any other
authority to support his request. Accordingly, petitioner’s motion for reconsideration will
be denied.

ORDER
IT IS ORDERED that the motion for reconsideration filed by petitioner Tyrone
Davis Smith under Rule 59(e), dkt. #14, is DENIED.
Entered this 21st day of July, 2017.
BY THE COURT:
/s/
_______________________
BARBARA B. CRABB
District Judge

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