Walker v. McCaughtry

Decision Date10 November 1999
Docket NumberNo. 98-C-130.,98-C-130.
Citation72 F.Supp.2d 1025
CourtU.S. District Court — Eastern District of Wisconsin
PartiesTony WALKER, Petitioner, v. Gary McCAUGHTRY, Respondent.

Tony Walker, pro se.

William Ganser, Asst. Atty. Gen., for Gary McCaughtry.

DECISION AND ORDER

ADELMAN, District Judge.

Tony Walker petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction of second degree reckless homicide and third degree sexual assault. The petition asserted three grounds for relief: (1) deprivation of his Fourth Amendment right to a prompt judicial determination of probable cause after his warrantless arrest; (2) ineffective assistance of trial counsel regarding his guilty pleas; and (3) ineffective assistance of appellate counsel for abandoning him without the filing of a no-merit report. On May 28, 1999, I issued a Decision and Order denying Walker's petition in its entirety. Judgment was entered in the docket by the clerk of court on June 1.

On June 4, Walker moved for reconsideration of the appellate counsel issue.1 After receipt of the motion, I indicated that I needed "a more complete record of what transpired in petitioner's state case, particularly with respect to the withdrawal of appointed appellate counsel, William J. Tyroler." I ordered respondent to file a copy of the complete record relating to Walker's conviction and ordered petitioner to file copies of any correspondence in his possession regarding Tyroler's involvement in his case.

Because the issue for reconsideration is similar to that in State ex rel. Toliver v. McCaughtry, 72 F.Supp.2d 960 (E.D.Wis. 1999), I am issuing this decision in tandem with the decision in that case.

I. MOTIONS FOR RECONSIDERATION

There is no "motion for reconsideration" mentioned in the Federal Rules of Civil Procedure. There is, however, Rule 59(e). All substantive motions served within ten days of the entry of judgment are treated as based on Rule 59(e). Britton v. Swift Transp. Co., 127 F.3d 616, 618 (7th Cir.1997). A "substantive" motion is one "that if granted would result in a substantive alteration in the judgment rather than just in a correction of a clerical error or in a purely procedural order such as one granting an extension of time within which to file something." Id. (internal quotation marks and citation omitted). Because Walker's motion for reconsideration was filed within ten days of the entry of judgment, it is properly considered as a motion brought under Rule 59(e).

A Rule 59(e) motion is not appropriately used to advance arguments or theories that could and should have been made before the district court rendered a judgment, to present evidence that was available earlier, or to attempt to correct a party's own procedural errors. Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 730 (7th Cir.1999); LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir.1995); Greisz v. Household Bank (Illinois), 8 F.Supp.2d 1031, 1045 (N.D.Ill. 1998), aff'd, 176 F.3d 1012 (7th Cir.1999). Instead, the only grounds for a Rule 59(e) motion are newly discovered evidence, an intervening change in the controlling law, or a "manifest error of law" by the court. Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir.1998). The rule essentially enables a district court to correct its own errors and thus avoid unnecessary appellate procedures. Divane v. Krull Elec. Co., 194 F.3d 845, 848 (7th Cir.1999).

Walker asserts that I made a manifest error of law when deciding his claim of ineffective assistance of appellate counsel under the precept of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), rather than Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

II. PROCEDURAL BACKGROUND

Walker was convicted on October 27, 1993, in Milwaukee County Circuit Court. On November 4, 1993, he filed a notice of his intent to pursue postconviction relief and requested that the State Public Defender (SPD) appoint counsel for his postconviction proceedings. The SPD did so, appointing William J. Tyroler. In December 1993, Tyroler requested copies of the court record and preparation of transcripts from circuit court staff. A March 1994 letter from Tyroler to Walker, however, indicates that while Tyroler may have assisted Walker regarding proper jail credit, he refused to help regarding a "new factor" Walker urged regarding his sentence. (See R. 20.)

On August 4, 1994, Judge Patricia D. McMahon granted Walker an extension of time, until September 1, 1994, within which to file a motion for postconviction relief under Wis.Stat. § 809.30, or an appeal. Judge McMahon noted that Walker proceeded pro se in requesting the extension and that Walker maintained "that his post conviction motion could not be timely filed due to a conflict between the defendant and his appointed counsel, Attorney Bill Tyrell [sic]. Mr. Tyrell [sic] is no longer defendant Walker's attorney, and the defendant still lacks representation." (R. 19 Ex. 2 Doc. 17 at 1.)

The time period for the postconviction motion, from which the time period for appeal is also determined, see Wis.Stat. § 809.30(2), expired without any filings by Walker attacking his conviction. Walker, proceeding pro se, instead filed a request for return of property, which was granted, and a motion for sentence credit, which was denied. In the process of deciding Walker's request for return of property, when the district and city attorneys objected to release of two pairs of shoes because they were being held as evidence, Judge McMahon wrote a letter to the attorneys in which she said she had "reviewed the file, and it appears as though the time for appeal has expired.... Such action was not taken; in fact, I have verified that the public defender handling the case determined that no postconviction relief would be pursued." (R. 19 Ex. 2 Doc. 22.)

A year after his allotted time period for filing a § 809.30 postconviction motion or appeal expired, in a letter Judge McMahon received August 29, 1995, Walker wrote that Tyroler had informed him that he was

filing a no-merit report with the court in April of 1994, but still has not filed it. If he has filed it, I haven't received notification of it nor have I had a chance to submit a response challenging it. If Mr. Tyroler doesn't want to argue my issues, but won't file the no-merit report, how am I suppose [sic] to proceed with my appeal process? If I submit a brief while he has not filed the report, would it be processed or dismissed? What I'm really asking is may I proceed without Mr. Tyrolers assistance or do I have to wait for him to file his report?

(R. 19 Ex. 3 at unnumbered 4.) The circuit court responded by telling Walker to inquire with the court of appeals. In or around September 1995 Walker also appears to have inquired with Tyroler regarding the no-merit report. (See R. 20.)

On December 4, 1995 and January 2, 1996, Walker submitted a pro se postconviction motion and supporting papers. The circuit court treated the motion as one filed under Wisconsin's collateral postconviction review statute, Wis.Stat. § 974.06, which is restricted solely to questions of jurisdictional or constitutional merit. See Wis.Stat. § 974.06.

Walker's § 974.06 motion raised the same three claims that he pursued in this petition. Regarding the appellate counsel issue, Walker wrote that "appellate counsel refuse[d] to represent defendant in postconviction procedure," (R. 19 Ex. 2 Doc. 27 at 5), and that Tyroler "alleged that my grounds for relief lacked merit and refuse[d] to represent me or help prepare any documents concerning postconviction relief," (id. at 7).

On January 17, 1996, Judge McMahon denied on the merits Walker's claims regarding the probable cause hearing and trial counsel's effectiveness, but indicated that the matter of ineffective assistance of appellate counsel had to be raised in a petition before the Wisconsin Court of Appeals under State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992). In his brief on appeal, Walker stated in further detail that Tyroler

informed defendant that he saw no issues of merit and that he would be filing a no-merit report. Defendant informed Mr. Tyroler that he would seek postconviction relief himself....

Mr. Tyroler informed the court that no postconviction relief would be pursued and withdrew himself from the case without ever submitting a no-merit report as required so defendant could respond to the court contesting whether or not issues of merit did exist.

....

.... Defendant did not file a timely postconviction motion because he had no assistance....

(R. 5 Ex. D at 34-35 (footnote omitted).) The Wisconsin Court of Appeals affirmed on April 15, 1997.

Walker next filed two "Knight petitions" in the Wisconsin Court of Appeals. His first petition was denied due to insufficient supporting factual allegations. In the second petition, Walker asserted that he had filed a notice of appeal but that Tyroler had been ineffective by withdrawing from the case without filing a no-merit report. Again, Walker attributed his failure to file anything by his deadline to the lack of assistance by Tyroler. (See R. 11 Ex. JJ at 2-4.) The court of appeals denied the second Knight petition on the merits. It made no factual findings regarding the circumstances surrounding Walker's attorney's withdrawal from the case, apparently assuming Walker's factual allegations as true for argument's sake. Instead, the court based its ex parte denial of the petition solely on Strickland:

Walker contends that he received ineffective assistance of appellate counsel on his direct appeal because his appointed counsel withdrew from the case and failed to file a no merit report....

Walker has not stated a claim for ineffective assistance of appellate counsel because he has not shown that counsel's actions in failing to file a no merit report could possibly have...

To continue reading

Request your trial
4 cases
  • Jones v. Berge
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • 21 Febrero 2003
    ...him a new appeal with the assistance of appointed counsel. See Betts v. Litscher, 241 F.3d 594 (7th Cir. 2001); Walker v. McCaughtry, 72 F.Supp.2d 1025 (E.D.Wis.1999); Wisconsin ex rel. Toliver v. McCaughtry, 72 F.Supp.2d 960 (E.D.Wis.1999); Dumer v. Berge, 975 F.Supp. 1165 I. BACKGROUND On......
  • Jones v. Berge
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • 19 Mayo 2000
    ...frivolous. See generally Wisconsin ex rel. Toliver v. McCaughtry, 72 F.Supp.2d 960, 972-79 (E.D.Wis.1999); Walker v. McCaughtry, 72 F.Supp.2d 1025, 1031-37 (E.D.Wis.1999). If I were to adopt the first option, these claims would never receive federal habeas review. The second option, and the......
  • State ex rel. Ford v. Holm
    • United States
    • Wisconsin Court of Appeals
    • 29 Enero 2004
    ...to show a knowing and intelligent waiver . . . . The record does not support the court's assumption."); Walker v. McCaughtry, 72 F. Supp. 2d 1025, 1035 (E.D. Wis. 1999) ("[The Wisconsin Court of Appeals] made no factual findings regarding . . . the circumstances surrounding [counsel]'s with......
  • Talley v. United States, CIVIL ACTION NO. 3:13-01754
    • United States
    • U.S. District Court — Southern District of West Virginia
    • 8 Septiembre 2014
    ...district court applied the Christiansburg standard, mere disagreement does not support a Rule 59(e) motion"), with Walker v. McCaughtry, 72 F.Supp. 2d 1025 (E.D. Wis. 1999) (possible application of the wrong legal standard in habeas proceedings amounted to clear error of law); Reconsiderati......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT