Martin v. Bartow

Page 666

621 F.Supp.2d 666

Stanley E. MARTIN, Petitioner, v. Byran BARTOW, Director, Wisconsin Resource Center, Respondent.

No. 08-cv-518-bbc.

United States District Court, W.D. Wisconsin.

June 1, 2009.

Rebecca Rapp St. John, Wisconsin Department of Justice, Madison, WI, for Respondent.

Stanley E. Martin, Jr., Winnebago, WI, pro se.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

This is an application for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Stanley Martin, who is presently confined at the Wisconsin Resource Center in Mauston, Wisconsin, is serving an indefinite term of confinement under Wisconsin's sexually violent person civil commitment provision, Chapter 980. His custody is the result of a final order entered by the Circuit Court for Milwaukee County on December 3, 1996. He alleges that he is in custody in violation of the laws and Constitution of the United States because his continued commitment is based in part on 1) 1976 and 1979 sexual assault charges that were dismissed pursuant to a plea agreement and 2) opinions from medical experts who considered petitioner's alleged conduct that was the subject of the dismissed charges.

Because it appeared that the petition was filed outside the one-year limitation period for habeas actions, this court gave petitioner the opportunity to present any additional facts that might show that the petition is timely. Dkt. # 4. On October 7, 2008, petitioner filed an amended petition in which he 1) argued that his petition was timely because it challenges the state court's decision on his continued confinement, which became final on August 18, 2008; and 2) alleged that he did not file his federal habeas petition earlier because he could not challenge his continued (as opposed to initial) confinement until the decision in Revels v. Sanders, 519 F.3d 734, 737-40 (8th Cir.2008) (finding petition timely because it challenged continued commitment decision and not conviction or initial commitment). Dkt. # 5 at 3-4; see also 28 U.S.C. § 2244(d)(1) (alternative start dates for federal habeas limitations period include date Supreme Court first recognized constitutional right and made it retroactively applicable and date factual predicate of claims could have been discovered). In an order entered on December 1, 2008, Magistrate Judge Crocker asked respondent to file a response addressing petitioner's arguments and the timeliness of the petition. Dkt. #8.

Now before the court is respondent's motion to dismiss the petition as untimely. Dkt. # 15. I find that the petition and amended petition raise challenges only to petitioner's initial and not continuing confinement. Because petitioner's deadline for filing a federal habeas petition with respect to the initial commitment order expired before he filed his petition in the instant case and he has not shown that he can benefit from statutory or equitable tolling, I am dismissing the petition as untimely.

From the petition, state court opinions and documents attached to the parties' submissions, I find the following facts.

FACTS

In 1978, petitioner pleaded guilty to injury by conduct regardless of life; the initial charge was rape and attempted murder. In 1979, petitioner pleaded guilty to endangering safety by conduct regardless of life; the initial charge was second degree sexual assault and threat to injure as a repeater. On November 17, 1988, petitioner was convicted of second degree sexual assault (habitual criminality). On June 11, 1996, before petitioner's mandatory release date, the state of Wisconsin filed a petition under Wis. Stat. § 980.01(7) (1995-96) in the Circuit Court for Milwaukee County, alleging that petitioner was a sexually violent person and should be detained. On November 1, 1996, a jury found petitioner to be a sexually violent person under Wisconsin's sexual predator law, Chapter 980. At trial, the state presented evidence of the alleged sexually violent conduct that led to his 1978, 1979 and 1988 convictions and expert testimony that he suffered from two mental disorders. The experts based their opinions in part on petitioner's history of sexual violence toward women. On December 3, 1996, the circuit court entered an order for petitioner's civil commitment in a mental health facility.

In October 1997, petitioner appealed his civil commitment, arguing that the expert witnesses applied the wrong legal standard, the trial court erred in limiting his cross examination of an expert witness and Chapter 980 is unconstitutional. On April 7, 1998, 218 Wis.2d 830, 1998 WL 156980 (1998), the Wisconsin Court of Appeals affirmed the trial court's order of commitment and denial of post-verdict motions. The Wisconsin Supreme Court denied petitioner's petition for review on June 12, 1998, 219 Wis.2d 923, 584 N.W.2d 123 (1998).

In a letter dated June 30, 1998, petitioner asked the circuit court for immediate release, alleging ineffective assistance of trial counsel and errors in the factual record concerning his alleged sexually violent behavior. The trial court denied the motion on July 23, 1998, finding that petitioner had waived his arguments by not raising them on appeal or in his post-verdict motions.

On June 24, 1999, petitioner filed a petition for a writ of habeas corpus pursuant to State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992), alleging that his appellate counsel was ineffective for failing to challenge 1) the constitutionality of the Chapter 980 standard for commitment and 2) a jury instruction related to that standard. On June 6, 2000, the court of appeals denied petitioner's first claim on its merits and dismissed his second claim on the ground that he should have brought it in the trial court, citing State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 679, 556 N.W.2d 136 (Ct.App.1996) (petition for habeas corpus or § 976.04 motion in trial court is proper vehicle for complaining about what should have occurred before trial court). The Wisconsin Supreme Court denied the petition for review on August 29, 2000.

On September 21, 2000, petitioner filed a petition for a writ of habeas corpus, which the circuit court denied five days later. Petitioner filed his first discharge petition on October 24, 2000, a motion challenging his civil commitment on July 10, 2001, a state habeas petition on December 6, 2001 and a second discharge petition on April 24, 2002. The state circuit court denied all of these challenges in decisions that became final after appeal by the end of 2002.

Petitioner filed several challenges regarding his confinement between 2003 and 2005, including a federal habeas petition in 2004, alleging that the state had not properly justified his continued commitment after changing its diagnoses of mental illness. Martin v. Bartow, Case No. 04-C-1044 (E.D.Wis. Nov. 15, 2004). On July 25, 2005, petitioner filed his fourth petition for discharge, alleging as he does in this petition that the state unconstitutionally introduced unsubstantiated sexual assault charges at his 1996 commitment trial and that every subsequent reevaluation of his condition relied on that inaccurate information. In support, petitioner cited a report in which a psychologist stated that one of her sources of information was a "review of previous chapter 980 evaluations." The circuit court denied the petition and petitioner's subsequent motion for reconsideration. On appeal, the court of appeals addressed petitioner's claim on the merits, noting that "[t]he issue is whether Martin's civil commitment as a sexually violent person was based on charges that had been dismissed, rendering void the basis for commitment." The appellate court found that petitioner's commitment as a sexually violent person was proper. That decision became final on August 19, 2008 when the state supreme court denied the petition for review. Petitioner filed his petition in this court on September 2, 2008. Respondent summarized all of petitioner's filings in dkt. # 16, exh. # 1.

DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 established a one-year limitations period for all habeas proceedings running from certain specified dates. 28 U.S.C. § 2244. The one-year period begins to run from the latest of (A) 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; (B) the date on which any state impediment to filing the petition was removed; (C) the date on which the constitutional right asserted was first recognized by the Supreme Court, if that right was also made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claims could have been discovered through the exercise of due diligence. § 2244(d)(1)(A)-(D). Pursuant to 28 U.S.C. § 2244(d)(2), time is tolled during the pendency of any properly filed application to the state for postconviction relief with respect to the pertinent judgment or claim. In addition, the one-year deadline may be tolled if "some impediment of a variety not covered in § 2244(d)(1) prevents the filing of a federal collateral attack." Owens v. Boyd, 235 F.3d 356, 360 (7th Cir.2000). See also Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (assuming without deciding that equitable tolling is available under § 2244). Such an impediment must have been an "extraordinary circumstance" that prevented petitioner from filing a timely petition. Lawrence, 549 U.S. at 336, 127 S.Ct. 1079.

As respondent notes, applying the federal habeas statute of limitations in cases in which a petitioner's custody arises from civil commitment under Wis. Stat. Ch. 980 is difficult because individuals committed under the statute have a right to challenge not only their initial commitment but their continued commitment. Wis. Stat. § 980.075(2) (committed person may petition court for supervised release or discharge...