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Grube v. Richardson

United States District Court, W.D. Wisconsin

June 24, 2016

JEREMIAH J. GRUBE, Petitioner,
v.
WARDEN REED A. RICHARDSON, [1] Respondent.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Petitioner 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.

         BACKGROUND

         In 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.

         On June 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 petitioner received:

• 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.

         More than four years later, petitioner violated his probation and it was revoked.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.

         Petitioner 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.

         ANALYSIS

         Petitioner identifies seven grounds for relief:

         1. The circuit court put him in double jeopardy by imposing the corrected sentence four years after he was first ...


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