Schuenke v. Smith
| Decision Date | 28 June 2016 |
| Docket Number | Case NO: 2014-CV-276 |
| Parties | LLOYD T. SCHUENKE Petitioner - Appellant v. JUDY P. SMITH Respondent - Appellee |
| Court | U.S. Court of Appeals — Seventh Circuit |
Notice is hereby given that the Petitioner - Appellant Lloyd T. Schuenke, pro Se Certified Paralegal in the above named case hereby appeals to the United States Court of Appeals for the Seventh Circuit from both an order (Dkt.18) and judgment (Dkt.19) dismissing the petition for a Writ of Error Coram Nobis, Petition for a Writ of Habeas corpus entered in this action on the 26th day of August 2014, and from an order (46) denying post judgment relief entered on the 23rd day of June 2016, pursuant to Fed. R. Pro. 3, 22 and Title 28 U.S.C. 2253 (C), (1),(A),(B),(2),(3).
Do Paragraph # 6 of the State V.S. Schuenke, 2014 WI APP 38, 2014 Wise. APP. LEXIS 161 (WI APP 2014), and paragraph # 3 on page # 3 of the Schuenke V.S. Smith, 2014 U.S. Dist. LEXIS 118645 (W.D. WI 2014), violate the Double Jeopardy Clause, Due Process Clause and Equal Protection Clause of the United States Constitution?
In January 1991, Petitioner - Plaintiff Lloyd T. Schuenke, was criminally charged with two (2) counts of third (3rd) degree sexual assault contrary to what is required pursuant to section § 940.225 (3) WIS STAT (1989-1990) (See State V.S. Schuenke, Case Number 1991-CF-910151). In December 2007, Petitioner - Plaintiff Lloyd T. Schuenke, was criminally charged with one (1) count of violation of sex offender registry pursuant to section § 301.45 (2),(3),(4),(6) WIS STAT (2005-2006) (See State V.S. Schuenke, Case number 2007-CF-6172). In September 2008, Petitioner - Plaintiff Lloyd T. Schuenke, was criminally charged with one (1) count of battery, One (1) count of substantial battery and one (1) count intimidation of victim all of which carried a while armed penalty enhancer and habitual criminality penalty enhancer contrary to what is required pursuant to sections § 939.62 (1),(a) § 939.62 (1),(b) § 939.63 (1),(a) § 939.63 (1),(c) § 940,19 (1) § 940.19 (2) § 940.44 (3) § 940.45 (1) WIS STAT (2007-2008) (See State V.S. Schuenke, Case Number 2008-CF-4503). In January 2013, Petitioner - plaintiff Lloyd T. Schuenke, simultaneously filed post conviction relief motions in all three (3) cases asserting both actual and legal innocence. April 2014, Petitioner - Plaintiff Lloyd T. Schuenke, filed the petition for a Writ of Coram Nobis, petition for a Writ of Habeas Corpus in the United States District Court for the Western District of Wisconsin (See Schuenke V.S. Smith, Case Number 2014-CV-276). Dkt. 1. In June 2014, Petitioner - Plaintiff L'loyd T. Schuenke, exhausted all available State Court remedies on the issues presented in the Petition for a Writ of Coram Nobis, Petition for a Writ of Habeas Corpus to no avail. In July 2014, Petitioner - Plaintiff Lloyd T, Schuenke, filed a motion for a rule 4 screening determination decision and order with the Seventh (7th) Circuit Federal Court of Appeals (See Appeal # 14-2580).Dkt. 10. In August 2014, Petitioner - Plaintiff Lloyd T. Schuenke, filed a Writ of Madamus with the Seventh (7th) Circuit Federal Court of Appeals (See Appeal # 14-2851).Dkt. 16. In August 2014, the United States District Court for the Western District of Wisconsin issued an opinion and order and judgment denying the petition for a Writ of Coram Nobis, petition for a Writ of Habeas Corpus. Dkt. 18, Dkt. 19. In September 2014, Petitioner - Plaintiff Lloyd T. Schuenke, filed a notice of appeal certificate of appealability with the Seventh (7th) Circuit Federal Court of Appeals (See Appeal # 14-3132). Dkt. 21. In December 2014, the Seventh (7th) Circuit Federal Court of Appeals ordered the appeal to proceed to a determination of whether a certificate of appealability should issue. In May 2015, the United States Court of Appeals for the Seventh (7th) Circuit issued an order denying the certificate ofappealability and motion to proceed in forma pauperis (See Appeal # 14-3132). Dkt. 36. In May 2015, Petitioner - Plaintiff Lloyd T. Schuenke, filed a Judicial Misconduct Complaint against District Judge James D. Peterson (See Complaint # 07-15-90038). Dkt. 34. In January 2016, Petitioner - Plaintiff Lloyd T. Schuenke, filed a motion for relief in the United States District Court for the Western District of Wisconsin court. Dkt. 37. In January 2016, Petitioner - Plaintiff Lloyd T. Schuenke, filed an application for release in the Western District of Wisconsin court. Dkt. 38. In February of 2016, Petitioner - Plaintiff Lloyd T. Schuenke, filed a copy of a letter wherein which was sent to all of the attorneys who had involvement in the case to date. Dkt. 41. In March of 2016, Petitioner - Plaintiff Lloyd T. Schuenke, sent District Judge James D. Peterson, a letter asking him to resolve the pending motion. Dkt. 42. In March 2016, Petitioner - Plaintiff Lloyd T. Schuenke, filed a memorandum of law in the United States District Court for the Western District of Wisconsin. Dkt. 43. In March 2016, Petitioner - Plaintiff Lloyd T. Schuenke, filed an Amended Application for release. Dkt. 44. In May of 2016, Petitioner - Plaintiff Lloyd T. Schuenke, filed a copy of a letter which was sent to United States Attorney Loretta Lynch who requesting that a criminal investigation be initiated involving all of the above cases. Dkt. 45.
During the trial in the State V.S. Schuenke, Case Number 1991-CF-910151 (1991), the trial Judge admitted in the trial transcript that the Petitioner - Plaintiff Lloyd T. Schuenke, did in fact have consent to have a sexual relationship with the alleged perpetrated victim in this case. The sole basis for the Petitioner - Plaintiff Lloyd T. Schuenke, being criminally charged with one (1) count of violation of sex offender registry in the State V.S. Schuenke, Case Number 2007-CF-6172 (2007), case was because of the conviction in the State V.S. Schuenke, Case Number 1991-CP-910151 (1991), Case. The sole basis for the Petitioner - Plaintiff Lloyd T. Schuenke, being criminally charged with the habitual criminality penalty enhancer in the State V.S. Schuenke, Case Number 2008-CF-4503 (2008), Case was because of the conviction in the State V.S. Schuenke, Case Number 2007-CF-6172(2007), case.
In order for a certificate of appealability to be issued an appellant must show; (1) that but for a constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense, 28 U.S.C. 2244 (B),(ii),(2)., (2) that a substantial showing of a denial of a constitutional right is presented, 28 U.S.C. 2253 (C), (2), Tennard V.S. Dretke, 542 U.S. 274 (2004), (3) that reasonable jurists could debate whether 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.S. Cockrell, 537 U.S. 322 (2003), (4) that anappeal has some merit to it, Walker V.S. O'Brein, 216 F.3d. 626 (7th Cir 2000)., and (5) the appellant need not show that he/she would be successful on the actual appeal.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor "shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property ba taken for public use, without just compensation.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside, No State shall make or enforce any law which shall abridge the privilege or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.
There shall be neither slavery, nor Involuntary servitude in this State, otherwise than for the punishment of crime, whereof the party shall have been duly convicted.
Excessive bail shall not be required, nor shall excessive fine be imposed, nor cruel and unusual punishments inflicted.
No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself.
Ho provision of chs. 939 to 951 shall be construed as changing the existing law with respect to presumption of innocence or burden of proof.
A penalty for the commission of a crime may be imposed only after the actor has been duly convicted in a court of competent jurisdiction.
On page # 51, of the July 31, 1991, trial transcript in the State V.S. Schuenke, Case Number 1991-CF-910151 (1991), case the judge in response to a motion to acquit/dismiss which was made by the Petitioner - Appellant Lloyd T. Schuenke, defense counsel once the State of...
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