Opinion
20-cv-1138-jdp
08-13-2021
ROBERT PIERRE KIDD, Plaintiff, v. JACQUELINE SCHELLINGER, Defendant.[1]
OPINION AND ORDER
JAMES D. PETERSON, DISTRICT JUDGE.
Robert Pierre Kidd, appearing pro se, is a prisoner at Waupun Correctional Institution. Kidd has filed a pleading styled as a civil complaint against the judge in his 2001 criminal case, in which he was convicted of three counts of second-degree reckless homicide. See Milwaukee County Case No. 2001CF2489. He contends that the judge initially refused to accept his plea and then would not give him a jury trial; he ultimately pleaded guilty. But aside from a cursory statement that he wants money damages, the focus of his pleading and various additional submissions is his request to reopen his criminal case or release him from prison. I will consider his filing as a petition for writ of habeas corpus under 28 U.S.C. § 2254.
As I have previously explained to Kidd, I cannot consider his habeas claims because he has already brought a habeas petition about this conviction. In 2004, Kidd brought an unsuccessful habeas petition in the United States District Court for the Eastern District of Wisconsin, challenging the same conviction. Kidd v. McCaughtry, No. 04-C-604, 2007 WL 128355 (E.D. Wis. Jan. 8, 2007). If Kidd believes that he qualifies for an exception to the rule against filing successive petitions, he must seek permission to file his petition with the court of appeals.
I note further that even had I considered Kidd's pleading as a civil complaint, his claims for damages against a state-court judge would be meritless: judges have absolute immunity for damages claims based on judicial conduct. See Stump v. Sparkman, 435 U.S. 349, 359 (1978); Loubser v. Thacker, 440 F.3d 439, 442 (7th Cir. 2006).
Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue or deny a certificate of appealability when entering a final order adverse to a petitioner. To obtain a certificate of appealability, the applicant must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 274, 282 (2004). This means that “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.” Miller El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations and citations omitted). Although the rule allows a court to ask the parties to submit arguments on whether a certificate should issue, it is not necessary to do so in this case. Because reasonable jurists would not debate whether this petition qualifies as “second or successive, ” I will not issue Kidd a certificate of appealability. He may seek a certificate from the court of appeals under Fed. R. App. P. 22.
Because I am treating Kidd's filing as a petition for writ of habeas corpus rather than a civil-rights complaint, I will direct the clerk of court to keep the $5 habeas filing fee and return to Kidd the remainder of the civil-action filing-fee payments he has made. Kidd has filed a submission asking for refund of filing-fee payments that were made using his veteran's pension. Dkt. 18. I will deny that motion with regard to the $5 habeas filing fee, and the motion is otherwise moot as a result of this order.
ORDER IT IS ORDERED that:
1. The petition for writ of habeas corpus filed by Robert P. Kidd, Dkt. 1, is DISMISSED for lack of authorization as a second or successive application.
2. Petitioner is DENIED a certificate of appealability. If petitioner wishes, he may seek a certificate from the court of appeals under Fed. R. App. P. 22.
3. The clerk of court is directed to refund petitioner's filing-fee payments in this case exceeding the $5 fee for filing a habeas corpus petition.
4. Petitioner's motion for refund of veteran's pension funds, Dkt. 18, is DENIED as explained in the opinion above.