United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
Tayr K. al Ghashiyah, formerly known as John Casteel, has
filed a document styled as a petition for writ of habeas
corpus under 28 U.S.C. § 2241. Al Ghashiyah is in
custody pursuant to two judgments of conviction entered by
the Circuit Court for Brown County in 1985 and 1986 for bank
robbery. In his petition, al Ghashiyah alleges that he was
incorrectly given a “repeater” sentence
enhancement of 10 years, he is being held past his mandatory
release date, prison staff has miscalculated and unlawfully
stripped him of good-time credits, and he has not been
released even though he has completed rehabilitation
Ghashiyah labels his petition as one under § 2241,
stating that filing under this statue is appropriate because
he challenges the execution of his sentence. This is
generally true for federal prisoners, but state
prisoners' requests for relief are governed by 28 U.S.C.
§ 2254. See Walker v. O'Brien, 216 F.3d
626, 633 (7th Cir. 2000). This is an important distinction,
because 28 U.S.C. § 2244(b) generally prohibits
“second or successive” § 2254 petitions. Al
Ghashiyah cannot avoid this rule by labeling his as one under
§ 2241. Id. (“Roughly speaking, this
makes § 2254 the exclusive vehicle for prisoners in
custody pursuant to a state court judgment who wish to
challenge anything affecting that custody, because it makes
clear that bringing an action under § 2241 will not
permit the prisoner to evade the requirements of §
rule affects al Ghashiyah in two ways. First, he cannot bring
claims concerning a “repeater” sentence
enhancement, because he has already unsuccessfully challenged
his bank robbery convictions and sentences in a § 2254
petition, Al Ghashiyah v. Smith, 101 F.3d 110
(Table), 1996 WL 625616 (7th Cir. 1996). He has also has
filed subsequent habeas petitions in this court that have
been dismissed, see Western District of Wisconsin
Case Nos. 08-cv-413-slc, 09-cv-236-slc, and 10-cv-172-slc,
and has been denied leave to proceed on second or successive
petitions by the court of appeals, see Seventh
Circuit Case Nos. 07-2048, 09-1448, and
09-2064. Accordingly, I will dismiss the repeater
sentence enhancement claims from this case.
Ghashiyah's remaining claims appear to concern events
that occurred after his previous § 2254 litigation.
Therefore, the “second or successive petition”
rule does not bar these claims because the factual predicate
for them was not available when his other motions were
pending. United States v. Obeid, 707 F.3d 898, 903
(7th Cir. 2013). But this rule might still have a potential
effect on future habeas petitions al Ghashiyah
files, because a later petition could be second or successive
to this one. All of the habeas claims he wishes to bring
concerning events that occurred after his most recent habeas,
and up to the present day, must be included in this petition,
or he would likely lose the chance to litigate any of those
claims in the future.
al Ghashiyah styled his petition as one under § 2241, he
may not be aware that this petition will have an effect on
future § 2254 petitions. For this and other reasons,
district courts have been instructed to warn a habeas
petitioner of the court's decision to recharacterize a
petition, and give the petitioner a chance to withdraw it or
amend it to include all potential claims. See Castro v.
United States, 540 U.S. 375, 383 (2003); Simpson v.
Pollard, No. 15-1319, slip op. at 2 (7th Cir. June 22,
2015). Accordingly, I will direct al Ghashiyah to respond to
this order, confirming that he wishes to proceed with his
petition as one under § 2254. If al Ghashiyah left any
potential claims out of his petition because he thought it
was not subject to the rules governing § 2254 petitions,
he should submit an amended petition including all
the claims he wishes to bring.
even if al Ghashiyah wishes to pursue his current claims
under § 2254, it is unlikely he will be able to proceed
with them, at least given his current allegations. I will
discuss each of those claims separately below. When he
responds to this order explaining whether he wishes to
withdraw his petition or proceed with it as a § 2254
petition, he will need to address the problems I discuss
Mandatory release date
Ghashiyah contends that he is being held past both his
“mandatory release date” and “maximum
discharge date” under Wisconsin law. But these claims
are premised on al Ghashiyah's belief that his mandatory
release date was in 2005 and his maximum discharge date was
in 2015. He attaches a “Notification of Sentence
Data” showing these dates. Dkt. 1-1, at 1. But this
document is dated December 27, 1985, and concerns al
Ghashiyah's 30-year sentence for the first of his two
bank robbery convictions, Brown County Case No. 85CF780.
Public records and previous court decisions make clear that
these dates were amended by al Ghashiyah's sentence in
the second of his cases, Brown County Case No.
85CF1026. In March 1986, al Ghashiyah received a
20-year sentence consecutive to the sentence in the '780
case. This is why courts have routinely described al
Ghashiyah as having a 50-year sentence. See, e.g.,
Ghashiyah v. Huibregtse, No. 09-cv-236-slc, 2009 WL
1578484, at *1 (W.D. Wis. June 3, 2009); State v.
Casteel, 2001 WI.App. 188, ¶ 1, 247 Wis.2d 451, 634
N.W.2d 338. Contrary to al Ghashiyah's assertions, the
Department of Corrections' “inmate locator”
website lists him as having a mandatory release date in March
2021 and a maximum discharge date in July 2035.
the record directly contradicts al Ghashiyah's asserted
basis for release, I would not allow him to proceed on this
claim as presently alleged if I were conducting the formal
screening of his petition under Rule 4 of the Rules Governing
Section 2254 Cases. But because I am giving him a chance to
either withdraw his petition or confirm that he means to
bring it under § 2254, I will give him a chance to
explain why I should not dismiss this claim.
Ghashiyah contends that prison officials have miscalculated
or incorrectly deprived him of good-time credits. But his
allegations suffer from the same problems as his claims in
previously dismissed habeas actions. He makes only vague
assertions that officials have miscalculated his good time
and unlawfully taken away some of his good-time credits. This
court has already warned al Ghashiyah that he cannot vaguely
assert deprivation of good time without explaining which
proceedings he is discussing or explaining whether he has
attempted to exhaust his administrative and state court
remedies before filing a habeas action here:
Further, petitioner is again raising the claim that he has
been deprived of good time credits because of 150
“invalid conduct reports.” As in case no.
09-236-bbc, petitioner does not provide any dates or facts
relating to any disciplinary proceedings and he makes no
showing that he has properly exhausted both his
administrative and state court remedies with respect to any
particular disciplinary proceeding. Petitioner may not
proceed with these challenges in this petition for the same
reasons that he was denied to proceed on them in his previous
case. The dismissal of his petition will be without
prejudice, so that petitioner may raise this claim in another
petition for a writ of habeas corpus if he files his claim
with the proper documentation. If he does not, his petition
will be dismissed with prejudice.
Al Ghashiyah v. Huibregtse, No. 10-cv-172-slc (W.D.
Wis. May 13, 2010). See also al Ghashiyah v.
Huibregtse, No. 09-cv-236-slc (W.D. Wis. June 3, 2009);
al Ghashiyah v. Huibregtse, No. 08-cv-413-slc (W.D.
Wis. Aug. 20, 2008). When al Ghashiyah responds to this
order, he should amend his petition to explain what
disciplinary proceedings he is ...