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McDonald v. Smith

United States District Court, E.D. Wisconsin

December 6, 2016

JIMI P. MCDONALD, Petitioner,
v.
JUDY P. SMITH, [1] Respondent.

          DECISION AND ORDER

          WILLIAM E. DUFFIN U.S. Magistrate Judge.

         I. Background

         On December 16, 2005, plaintiff Jimi P. McDonald was sentenced to five years in prison and two years of extended supervision for one count of substantial battery with use of a dangerous weapon “stemming from a September 2004 incident in which he battered someone with a tire iron during a bar brawl.” (ECF Nos. 13-1; 13-5, ¶ 2.) That sentence was stayed and McDonald was placed on three years of probation. (ECF No. 13-1.) The court ordered the sentence to be served consecutive to any other sentence. (ECF Nos. 13-1; 13-2 at 32.)

         At the time of sentencing McDonald was serving an unrelated sentence in Illinois. McDonald's Wisconsin probation agent sent him a letter on October 23, 2007, reminding McDonald that he was required to notify her upon his release from Illinois custody. (ECF No. 13-2 at 32.) McDonald was released from Illinois custody on November 16, 2007. (ECF No. 13-2 at 32.) He did not notify his probation agent of his release, and when his probation agent learned of his release she issued an apprehension request on December 19, 2007. (ECF No. 13-2 at 32.)

         On January 24, 2008, McDonald was arrested in Illinois for robbing a gas station. The Wisconsin probation agent cancelled the apprehension request but asked Illinois to hold McDonald for the Wisconsin Department of Corrections. (ECF No. 13-2 at 32.) McDonald apparently remained in pretrial custody in Illinois until January 5, 2009, when he was convicted of the robbery and sentenced to five years in prison. (ECF No. 13-2 at 32.) He received 346 days of credit toward the Illinois sentence for the time he spent in pretrial detention. He was released from prison in Illinois on November 26, 2012. (ECF No. 13-2 at 32.) He was then extradited to Wisconsin, where he stipulated to the revocation of his probation in the substantial battery case. (ECF No. 13-2 at 32.)

         The question as to the amount of credit to which McDonald was entitled on his revocation sentence was first presented to an administrative law judge (ALJ). The ALJ concluded that McDonald was entitled to sentence credit for the time he spent in pretrial detention in Illinois. However, he was “not entitled to credit for the time he began to serve the new Illinois sentence (January 5, 2009) through the date he paroled on that Illinois sentence and became available to Wisconsin (November 26, 2012).” (ECF No. 13-2 at 32.) The ALJ stated, “Case law provides that an offender is not entitled to custody credit for time served after he was sentenced in a different state because the sentencing in the other state severed the connection between his custody and Wisconsin. See State v. Beets, 124 Wis.2d 372, 369 N.W.2d 382 (1985); see also State v. Carter, 2007 WI.App. 255, 306 Wis.2d 350, 743 N.W.2d 700.” (ECF No. 13-2 at 32.)

         The Division of Hearing and Appeals agreed with the ALJ's decision. (ECF No. 13-2 at 34-35.) McDonald sought certiorari review in the circuit court, which the court also construed as a petition for a writ of habeas corpus. (ECF No. 13-2 at 36-41.) The circuit court denied McDonald relief (ECF No. 13-2 at 36-41) and McDonald appealed (ECF No. 13-2).

He argued that he also was entitled to credit from January 5, 2009 to November 26, 2012, the time he served for the Illinois robbery, because he was on a Wisconsin probation hold during that time. Alternatively, he argued that at a minimum he should be credited with the last thirty-six months of his Illinois sentence because under “standard Illinois procedure he would have been released when he became 36 months short of his mandatory release date, ” but was “forced” to serve the remainder due to the probation hold.

(ECF No. 13-5, ¶ 5.)

         Relying on state law the Wisconsin Court of Appeals concluded that McDonald was not entitled to credit for the time he spent serving the sentence in Illinois for conduct unrelated to his Wisconsin sentence. McDonald argued that he served the last three years in custody only because of an Illinois policy precluding release for persons who are subject to detainers; but for the Wisconsin detainer, he alleged, he would have been released three years earlier. (ECF No. 13-5, ¶ 10.) The court of appeals found that McDonald failed to show that the Wisconsin detainer, in fact, kept him in custody any longer than he otherwise would have been incarcerated. (ECF No. 13-5, ¶ 10.)

         The court of appeals also rejected McDonald's argument that his right to due process was violated by the Department of Correction's failure to commence revocation proceedings before he completed the Illinois sentence, despite McDonald's repeated requests that it do so. (ECF No. 13-5, ¶¶ 11-15.) The Wisconsin Supreme Court denied review (ECF No. 13-8), and on May 11, 2015, McDonald filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         The petition was initially assigned to the Honorable Lynn Adelman, who screened the petition in accordance with Rule 4 of the Rules Governing Section 2254 Cases. (ECF No. 5.) In addition to ordering the respondent to answer the petition, Judge Adelman set deadlines for the parties to submit their respective briefs. (ECF No. 5.) The case was subsequently reassigned to this court upon all parties consenting to the full jurisdiction of a magistrate judge. (ECF Nos. 4, 8, 10.)

         Although the respondent answered the petition (ECF No. 13), McDonald did not submit anything further. The deadline for doing so having long since passed, McDonald's petition is subject to dismissal pursuant to Civil Local Rule 41(c) for his failure to diligently prosecute this action. Nonetheless, the court will proceed to consider McDonald's claim on its merits, relying on the record as it currently exists.

         II. ...


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