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Smith v. Pollard

United States District Court, W.D. Wisconsin

April 29, 2016

JAMES A. SMITH, Petitioner,


STEPHEN L. CROCKER Magistrate Judge.

James A. Smith has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in which he challenges both a revocation of his probation and a judgment of conviction for one count of disorderly conduct, one count of criminal trespass to a dwelling, and one count of damage to property, entered on June 18, 2014 by the Circuit Court for Milwaukee County in case no. 2013CF2453. His petition is ready for screening pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Rule 4 requires the court to examine the petition and supporting exhibits and dismiss a petition if it “plainly appears” that petitioner is not entitled to relief. The petition must cross “some threshold of plausibility” before the state will be required to answer. Harris v. McAdory, 334 F.3d 665, 669 (7th Cir. 2003); Dellenbach v. Hanks, 76 F.3d 820, 822 (7th Cir. 1996). If the petition is not dismissed, then the court orders respondent to answer or otherwise respond to the petition.

After reviewing Smith’s petition, the court will not order the state to respond at this time. It is extremely difficult to determine what challenges Smith is attempting to raise in his petition. The petition itself is 87 pages long, and Smith also filed more than 200 pages of attachments with it. The petition includes pages of legal arguments and allegations regarding treatment by County employee and jail staff that seem irrelevant to any challenge Smith is attempting to make to his conviction in 2013CF2453. Additionally, Smith makes several arguments regarding the legality of several other state court convictions. As explained in more detail below, Smith must file an amended petition in which Smith clearly identifies:

(1) Which conviction or sentence he is challenging;
(2) The legal grounds for his challenges; and
(3) A brief explanation of the facts supporting his legal challenges.

To the extent Smith is challenging more than one state court judgment, he must file a separate petitions if the judgments were entered by different courts, or different judges or divisions in the same district. See Rule 2(e) of the Rules Governing Section 2254 Cases. After Smith files an amended petition, the court will review that petition pursuant to Rule 4.


From what the court can discern from the petition, the attachments and Wisconsin’s online court records, Smith was placed on probation in December 2012 for two misdemeanor offenses of disorderly conduct and violating a domestic abuse injunction, in case nos. 12CM4195 and 12CM5521. Smith failed to report to his probation agent for probation orientation. His agent then issued a DOC warrant for his arrest, but he was not immediately arrested.

In May 2013, Smith was involved in an altercation with his estranged wife, with whom he was not supposed to have contact, and the Milwaukee Police Department issued a warrant for his arrest. He was arrested on May 30, 2013, by Milwaukee police based on the Milwaukee warrant and the DOC warrant. After Smith was arrested, the DOC sought to have his probation revoked. An ALJ revoked Smith’s probation on September 27, 2013, after concluding that: Smith had absconded from supervision by failing to make his whereabouts and activities known to his agent; Smith had contacted the victim of his prior offenses; Smith had failed to complete domestic violence counseling; Smith had failed to complete alcohol and drug treatment; Smith had failed to complete a mental health evaluation; Smith had failed to pay court ordered obligations and resisted arrest.

Smith was charged in case no. 2013CF2453 with criminal trespass to dwelling, criminal damage to property, and disorderly conduct (domestic abuse), as a result of the May incident with his estranged wife. Smith pled guilty and was sentenced to nine months on Count 1, six months on Count 2, and 2 months on Count 3. The sentence amounted to one of time-served by the time of sentencing. However, Smith also had been charged with felony intimidation of a witness in Case No. 13CF4501, and with misdemeanor intimidation of a witness in Case No. 14CF1664, based on Smith contacting his estranged wife from jail and persuading her to recant her statements to the police regarding the May 2013 incident. Smith pled guilty in both of those cases as well, receiving a sentence of two years imprisonment with five years extended supervision in 13CF4501, and seven months imprisonment in 14CF1664.


To succeed in obtaining a federal writ of habeas corpus, a petitioner must show that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §§ 2241(c), 2254(a). Here, it is impossible to discern why Smith believes he is in custody unlawfully. Smith’s specific legal challenges are lost in his unnecessarily long, rambling petition. Rather than focus on the specific challenges to his conviction, Smith spends much of his petition analyzing various court decisions, making legal arguments and accusing state and county employees of misconduct against him while he was in custody.

It is not even clear which state court judgment is the focus of the petition. Although Smith identifies case no. 13CF2453 on the first page of his petition, he also submits time argument regarding his convictions, sentences, and revocation, in Case Nos. 12CM4195 and 12CM5521. Additionally, Smith mentions his convictions in ...

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