Borchardt v. Cooper
2:17-cv-00336
E.D. Wis.Mar 5, 2018Background
- Petitioner Diane Borchardt filed a pro se pleading that mixed a habeas corpus request (28 U.S.C. §§2241/2254) seeking release and a civil §1983-type damages request; she used the wrong court form.
- She named Scott Walker, Jefferson County, former DA Linda Larson and Judge John Ullsvik, but the habeas custodian should be the warden at Taycheedah.
- The court treated the filing as a §2254 habeas petition challenging a 1994 Jefferson County conviction and reviewed state dockets showing conviction/sentence in 1995 and appeals concluding in 1998–1999.
- The petition appears to be filed well after the AEDPA one-year limit (roughly 16–17 years late), though the petitioner filed state motions in 2016–2017.
- Petitioner alleges unnamed witnesses and a potential witness (Jason Yahanke) who would implicate others and exonerate her, but provided no affidavits or other new, reliable evidence.
- Court: denied habeas filing-fee waiver as moot, denied inapplicable §1983 fee waivers, denied without prejudice request for appointed counsel, and ordered petitioner to file an amended §2254 form plus new reliable evidence of actual innocence by April 16, 2018 or face dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper vehicle & filing fee | Borchardt seeks release via habeas; used wrong form and also requested damages | N/A (court clarifies legal distinction) | Court treated case as §2254 habeas; denied §1983 fee waivers as inapplicable and denied habeas fee waiver as moot (fee paid) |
| Timeliness under AEDPA | Implicit: petition should be considered despite long delay | Petition appears untimely under 28 U.S.C. §2244(d) (one-year limit) | Court found petition appears time-barred based on docket research but could not fully decide without proper form/details |
| Actual innocence gateway to overcome time bar | Borchardt alleges unnamed witnesses and Yahanke will exonerate her | No sworn statements or new reliable evidence submitted | Court required submission of new, reliable evidence (sworn affidavits, etc.) showing actual innocence per Schlup/McQuiggin standard or petition will be dismissed |
| Appointment of counsel | Borchardt says she is indigent and unable to retain counsel | She did not provide required attempts to hire private counsel or show incapacity to litigate | Motion denied without prejudice; may renew after showing reasonable efforts to hire and inability to proceed pro se |
Key Cases Cited
- Preiser v. Rodriguez, 411 U.S. 475 (1973) (habeas is exclusive remedy for prisoners seeking release)
- Schlup v. Delo, 513 U.S. 298 (1995) (actual-innocence gateway requires new reliable evidence)
- McQuiggin v. Perkins, 569 U.S. 383 (2013) (actual innocence may overcome AEDPA time bar)
- Pischke v. Litscher, 178 F.3d 497 (7th Cir. 1999) (scope of §1983 relief for prisoners)
- Navejar v. Iyola, 718 F.3d 692 (7th Cir. 2013) (standard for recruiting counsel in civil cases)
- Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (requirement to show reasonable efforts to retain counsel and lay capacity analysis)