United States District Court, W.D. Wisconsin
JEREMIAH J. GRUBE, Petitioner,
WARDEN REED A. RICHARDSON,  Respondent.
OPINION & ORDER
D. PETERSON District Judge
Jeremiah J. Grube is currently in custody at the Chippewa
Valley Correctional Transitional Facility. He seeks a writ of
habeas corpus under 28 U.S.C. § 2254 to challenge his
2005 sentencing from the Circuit Court for Calumet County.
Petitioner has paid an initial partial filing fee in this
court and I may now preliminarily review the case under Rule
4 of the Rules Governing Section 2254 Cases in the United
States District Courts. After reviewing the petition, I
conclude that petitioner has presented a “mixed
petition.” That means that some of his claims are ready
to proceed and others are not yet exhausted. A mixed petition
presents petitioner with a choice on how he would like to
proceed. I will give petitioner an opportunity to inform the
court of his choice.
2004, petitioner entered a no contest plea to the charges in
three cases. In case 2003-CF-122, he was charged with a
misdemeanor battery under Wis.Stat. § 940.19. In case
2004-CF-001, he was charged with possessing cocaine with
intent to deliver and delivering less than 15 grams of
cocaine under Wis.Stat. § 961.41, and with felony bail
jumping under Wis.Stat. § 946.49. Finally, in case
2003-CF-142, he was charged with misdemeanor theft under
Wis.Stat. § 943.20, and with felony bail jumping under
Wis.Stat. § 946.49.
3, 2005, Judge Thomas J. Gritton sentenced petitioner to nine
months of jail for the misdemeanor battery charge, delivery
of cocaine, possession of cocaine with intent to deliver, and
felony bail jumping, and theft. The judgment stated that
• 9 months of jail for misdemeanor battery;
• 10 years of probation, to run consecutively with the
9-month sentence for battery, and a 12-month
imposed-and-stayed jail sentence for delivery of cocaine;
• a withheld sentence of 10 years of probation for
possession of cocaine with intent to deliver; • 6 years
of probation for felony bail jumping; and
• a withheld sentence of 6 years of probation with 12
months of jail time as a condition of probation for felony
bail jumping and theft.
than four years later, petitioner violated his probation and
it was revoked. Before his post-revocation sentencing, the
court noticed an error in petitioner’s judgment of
conviction: the written sentence did not match the
judge’s words from the bench. The discrepancy raised
the question of whether the 12-month imposed-and-stayed part
of the sentence for delivery of cocaine was instead intended
to be a condition of probation. On December 21, 2009, the
judge corrected his sentence to match the transcript from the
original sentencing hearing, making the 12 months for
delivery of cocaine a condition of probation rather than an
imposed-and-stayed sentence. He then sentenced petitioner to
two years of confinement and one year of extended supervision
for felony bail-jumping, and to consecutive four-year terms
of confinement and six years of extended supervision for the
two cocaine-related counts.
appealed his new sentence to the Wisconsin Court of Appeals,
which affirmed on September 21, 2011. State v.
Grube, 2011 WI.App. 143, ¶ 1, 337 Wis.2d 557, 806
N.W.2d 269. He then appealed to the Wisconsin Supreme Court,
which denied review. Petitioner also moved for postconviction
relief under Wis.Stat. § 974.06, and appealed the
circuit court’s subsequent denial. The court of appeals
again affirmed the circuit court, and denied
petitioner’s motion for reconsideration. The Wisconsin
Supreme Court again denied review on June 12, 2014, State
v. Grube, 2014 WI 50, 354 Wis.2d 862, 848 N.W.2d 858,
and petitioner filed his writ in this court on June 26, 2014.
identifies seven grounds for relief:
circuit court put him in double jeopardy by imposing the
corrected sentence four years after he was first ...