Williams, Dwight v. Litscher, Jon
ORDER denying 1 Petition for Writ of Habeas Corpus and dismissing this case with prejudice. A certificate of appealability is DENIED. Signed by District Judge Barbara B. Crabb on 11/9/2017. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
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OPINION AND ORDER
JOHN E. LITSCHER,
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Petitioner Dwight A. Williams has filed a pro se petition for a writ of habeas corpus
under 28 U.S.C. § 2254. He challenges a judgment of conviction entered on December
10, 1996, by the Circuit Court for Dane County, Wisconsin, on multiple counts of
forgery, resisting or obstructing an officer and bail jumping, in Case No. 1996CF42.
Petitioner raises the following grounds for relief: (1) the court erred by imposing a term
of probation to run consecutively to his prison sentence; (2) petitioner was forced to
proceed to trial without the assistance of counsel; (3) petitioner received ineffective
assistance of counsel; and (4) witness tampering. The petition is before this court for
screening pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
I am dismissing the petition because it is clearly untimely.
under § 2254 have a one-year statute of limitations that begins to run from the date on
which the judgment of conviction is final. That deadline may be extended if the state
prevented the petitioner from filing earlier, if the Supreme Court has recognized a new
constitutional right, or if the petitioner has discovered new facts supporting his claim, but
petitioner does not allege that any of those things apply to his case.
28 U.S.C. §
According to the petition, attachments and electronic court records, petitioner was
sentenced in Dane County case no. 1996CF42 on March 31, 1997. He filed a notice of
appeal on July 8, 1997, but the appeal was dismissed in April 1998. He did not seek
review of the dismissal in the Wisconsin Supreme Court. Petitioner was incarcerated out
of state from 1999 and 2005 and did not seek to challenge his conviction or sentence
during that period.
In May 2010, petitioner filed a motion for postconviction relief
relating to his probation.
He also filed additional motions with the circuit court and
court of appeals in 2014 and 2016. The court of appeals denied petitioner’s most recent
motions for lack of jurisdiction. State of Wisconsin ex rel. Williams v. Circuit Court for
Dane County, 2016AP1582-W (Oct. 12, 2016).
Petitioner did not file his habeas
petition in this court until September 1, 2017, long after his one-year time period for
filing a federal habeas petition had expired.
Therefore, it is plainly untimely under §
Petitioner may contend that his one-year clock was tolled because he filed several
motions with the circuit court and court of appeals. Under § 2244(d)(2), the time during
which a “properly filed application for state post-conviction or other collateral review” is
pending is not counted toward any period of limitation. However, the petition and the
electronic records show that more than one year had elapsed from the time petitioner’s
conviction was final and any properly filed application for state post-conviction or other
collateral review.” In other words, by the time petitioner filed a proper collateral attack
in 2010, his federal habeas clock had long since run.
Petitioner appears to argue that his petition is timely under the doctrine of
equitable tolling. An untimely petition may be salvaged if grounds exist to equitably toll
the limitation period.
Equitable tolling, however, is an extraordinary remedy that is
rarely granted. Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir. 2008). The Supreme
Court has explained that “a petitioner is entitled to equitable tolling only if he shows (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, 560 U.S.
631, 649 (2010) (internal quotation marks omitted).
In this instance, petitioner states that he failed to file his federal habeas petition
within the one-year deadline because he was incarcerated out of state and did not have
counsel. This is not enough to invoke equitable tolling. Petitioner does not explain why
being held out of state prevented him from filing any habeas petition or other motion for
postconviction relief on his own. Additionally, the fact that petitioner was out of state
between 1999 and 2005 does not explain why he waited until 2010 to file a
postconviction motion and until 2017 to file his federal habeas petition.
understand that it can be difficult to understand filing requirements and deadlines, the
“[l]ack of familiarity with the law . . .
is not a circumstance that justifies equitable
tolling.” Taylor v. Michael, 724 F.3d 806, 811 (7th Cir. 2013). Accordingly, petitioner
has shown no basis for tolling the one-year habeas deadline. Because he did not file his
habeas petition within one year after his conviction became final, it is time-barred under
The only matter remaining for discussion is whether to issue a certificate of
appealability pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases. A court
may issue a certificate of appealability only if the applicant makes a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The standard for making
a “substantial showing” is whether “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.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). If a district
court dismissed a habeas petition based on procedural grounds without reaching the
underlying constitutional claims, then a certificate of appealability “should issue when
the prisoner shows, at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its procedural
ruling.” Id. Each showing is a threshold inquiry; thus, the court need address only one
component if that particular showing will resolve the issue. Id. at 485.
This petition should not proceed further. No reasonable jurist would disagree that
the petition is untimely and that petitioner has failed to show that equitable tolling
should apply. Therefore, petitioner is not entitled to a certificate of appealability.
IT IS ORDERED that the federal habeas corpus petition filed by Dwight A.
Williams is DENIED and this case is DISMISSED with prejudice.
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 9th day of November, 2017.
BY THE COURT:
BARBARA B. CRABB
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