United States District Court, W.D. Wisconsin
PHILLIP S. DUNN, Petitioner,
STATE OF WISCONSIN, Respondent.
BARBARA B. CRABB DISTRICT JUDGE
prisoner Phillip Dunn has filed a petition for a writ of
habeas corpus in which he challenges the legality of his
confinement in the La Crosse County jail. Petitioner has paid
the $5 filing fee, so his petition is ready for screening.
Under Rule 4 of the Rules Governing Section 2254 Cases, I
must dismiss the petition if it plainly appears from the
petition and any attached exhibits that petitioner is not
entitled to relief.
problem with the petition is that petitioner has not
exhausted his available remedies in state court, as required
by 28 U.S.C. § 2254(b)(1)(A). O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); Perruquet v.
Briley, 390 F.3d 505, 514 (7th Cir. 2004). To comply
with the exhaustion requirement, "the prisoner must
‘fairly present' his claim in each appropriate
state court (including a state supreme court with powers of
discretionary review)." Baldwin v. Reese, 541
U.S. 27, 29 (2004). However, even if petitioner had exhausted
his state court remedies, it is clear that he could not
prevail on his claims, so I see no reason to require
petitioner to go back to state court before deciding the
merits of his petition. 28 U.S.C. § 2254(b)(2) ("An
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the
says that a 2014 conviction for bail jumping violates the
double jeopardy clause of the Fifth Amendment to the United
States Constitution, but it is not clear why he believes
that. (Although petitioner does not say this explicitly, I
will assume that his current incarceration is the result of
his conviction for bail jumping.) He writes, "[h]ad the
La Crosse police never searched my residence without
permission or kicked in my bedroom door in order to have
probable cause to illegally and unlawfully obtain a search
warrant, I would never [have] been on a felony bond."
Dkt. #1 at 2. In a supplement that petitioner calls
"motion for injunctive relief, " dkt. #9, he
explains further: "after being charged with possession
of methamphetamine after an illegal search and seizure, [a
state court judge] signed an arrest warrant for unpaid court
fees, a civil matter, [which led] to my arrest for driving
without a license but since [I was] on bond for possession
[I] was charged with felony bail jumping." Dkt. #9 at 2.
claim seems to rely on the following premises: (1) police
officers violated the Fourth Amendment when they searched his
home in 2014; (2) if police officers had not violated the
Fourth Amendment, he would not have been charged with
possessing methamphetamine and then been released on bond;
(3) if he had not been on bond, he would not have been
charged with bail jumping for driving without a valid
all of these premises are correct, it does not mean that
petitioner’s conviction for bail jumping violated the
double jeopardy clause of the Fifth Amendment or any other
provision in the Constitution. The double jeopardy clause
limits the government’s ability to prosecute a person
for the same crime twice. Boyd v. Boughton, 798 F.3d
490, 493 (7th Cir. 2015). However, petitioner does not allege
that he was convicted twice for the same crime, so the double
jeopardy clause has no bearing on his claims.
real theory seems to be that the alleged Fourth Amendment
violations tainted his conviction for bail jumping, but that
theory does not provide a ground for relief for two reasons.
First, the general rule is that a prisoner cannot bring a
Fourth Amendment claim in the context of a habeas petition.
Stone v. Powell, 428 U.S. 465 (1976); Hampton v.
Wyant, 296 F.3d 560, 563 (7th Cir. 2002). Second, even
if petitioner is correct that police officers violated his
Fourth Amendment rights, his remedy would be limited to the
suppression of evidence discovered during the unlawful search
and damages in a civil case. Gonzalez v. Entress,
133 F.3d 551, 554 (7th Cir. 1998). (In fact, plaintiff is
proceeding on a civil case for damages related to the alleged
Fourth Amendment violations. Dunn v. Secord, No.
15-cv-430-bbc (W.D. Wis.).) Petitioner does not allege that
state officials relied on illegally obtained evidence to show
that he violated the terms of his bond, so any Fourth
Amendment violation related to a previous charge would have
no bearing on his conviction for bail jumping.
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 the question is not a close one. For
the reasons stated, reasonable jurists would not debate the
question whether petitioner has stated a claim for relief.
Therefore, no certificate of appealability will issue.
Petitioner Phillip Dunn’s petition for a writ of habeas
corpus under 28 U.S.C. § 2254, dkt. #1, his "motion
for immediate relief or suspension of state sentence, "
dkt. #8, and his "motion for injunctive relief, "
dkt. #9, are DENIED.
Petitioner is DENIED a certificate of appealability.
Petitioner may seek a certificate from the court ...