United States District Court, E.D. Wisconsin
ORDER DENYING PETITION WITHOUT PREJUDICE (DKT. NO.
1), DENYING AS MOOT THE PETITIONER'S MOTION TO PROCEED IN
FORMA PAUPERIS (DKT. NO. 2) AND DISMISSING THE CASE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
Zackory John Kerr, who is proceeding without a lawyer, filed
a petition for a writ of habeas corpus under 28
U.S.C. §2254. Dkt. No. 1. He also asked the court for
leave to proceed without paying the filing fee. Dkt. No. 2.
The case now is before the court for screening under Rule 4
of the Rules Governing §2254 Proceedings.
December 13, 1994, the petitioner was convicted in Milwaukee
County Circuit Court, Case No. 1994CF943412, of second degree
sexual assault and attempted second degree sexual assault,
after entering an Alford plea. Dkt. No. 1 at 2.
The state court sentenced him to serve five years in custody,
with three years of probation to be served consecutively.
Id. In the section of the petition which asks
whether the petitioner appealed his conviction, the
petitioner wrote, “unsure.” Id. at 3.
The petitioner attached to the petition a copy of a print-out
of the history of the state-court case (presumably from
CCAP). Dkt. No. 1-1 at 12-14. According to that history, the
petitioner did not file an appeal; rather, he filed a motion
for post-conviction relief in the Milwaukee County Circuit
Court some three and a half years after his sentencing.
Id. at 12. (The petitioner did not list this motion
in Section III of his petition. Id. at 4.) The
circuit court denied the motion, and the Wisconsin Court of
Appeals affirmed that decision. Id. The petitioner
did not appeal the Wisconsin Court of Appeals' decision
to the Wisconsin Supreme Court. Id.
December 6, 2016, the petitioner filed his habeas
petition in federal court, alleging four grounds. Dkt. No. 1.
He alleges that: (1) his conviction was a fundamental
miscarriage of justice; (2) he is actually innocent; (3) the
conviction and sentencing violated his federal constitutional
rights under the Fifth Amendment; and (4) his trial counsel
was ineffective, in violation of the Sixth Amendment.
Id.at 6-9. For each of these causes of action, the
petition asked, “If you did not exhaust your state
remedies on Ground X, explain why.” The petitioner
responded, “I don't have records or transcripts to
honestly say!” Id. at 7.
THE COURT MUST DISMISS THE PETITION BECAUSE THE PETITIONER
DID NOT EXHAUST HIS STATE COURT REMEDIES.
court now will review, or “screen” the petition.
Rule 4 of the Rules Governing §2254 Proceedings says:
If it plainly appears from the face of the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner. If
the petition is not dismissed, the judge must order the
respondent to file an answer, motion, or other response
within a fixed time . . . .
stage, the court reviews the petition and its exhibits to
determine if the petitioner has set forth claims arising
under the Constitution or federal law that are cognizable on
habeas review, exhausted in the state court system,
and not procedurally defaulted.
to 28 U.S.C. §2254(b)(1)(A), federal courts cannot grant
habeas relief unless the petitioner exhausts the
available state court remedies. Generally, courts consider a
claim exhausted if a petitioner presents it through one
“complete round of the State's established
appellate review process.” Woodford v. Ngo,
548 U.S. 81, 92 (2006) (citation omitted).
review of the documents the petitioner submitted shows that
the petitioner did not exhaust his claims in state court,
either through a direct appeal or through Wisconsin's
post-conviction motion procedure. The case history (docket
report) that the petitioner attached to his petition shows
that he did not file an appeal after sentencing. He entered
his plea on December 13, 1994, and the state court imposed
sentence on January 27, 1995. There was no further activity
in the case until June 19, 1998, when he filed his
Wis.Stat. §809.30(2)(b), someone who wants to appeal a
criminal conviction or sentence has to file a notice of
intent to seek post-conviction relief within twenty (20) days
of the date of “sentencing or final
adjudication.” The petitioner's sentencing took
place on January 27, 1995-that means that he had to file that
notice no later than February 16, 1995. But the case history
report shows that the petitioner didn't file anything by
February 16, 1995, or even in the next year or two. Not only
did the petitioner fail to contest his conviction and
sentence through a complete round of the Wisconsin appellate
review process-he didn't contest it with any
Wisconsin appellate court.
petitioner did file a post-conviction motion on June 19,
1998-three and a half years after his sentencing. The court
does not know, but assumes that the petitioner filed this
motion under Wis.Stat. §974.06(1), which allows a
prisoner serving a criminal sentence to file a motion
claiming that his conviction or sentence was invalid. That
statute allows a prisoner to file such a motion at any time
“[a]fter the time for appeal or postconviction remedy
provided in s. 974.02 has expired . . . .” The
petitioner did not attach his post-conviction motion, so the
court does not know what issues he raised in that motion, or
whether he raised in that motion any of the grounds he raises
in his habeas petition.
Milwaukee County Circuit Court denied that motion six days
later. The court does not know the basis for the circuit
court judge's denial of the motion. The Wisconsin Circuit
Court Access Program shows that the petitioner filed his
notice of appeal from that decision on July 16, 1998, and
that the court of appeals summarily affirmed the circuit
court's decision on September 1, 1999. State v.
Zackory Kerr, Appeal No. 1998AP002057-CR, found at
https://wscca/wicourts.gov. The circuit court and
court of appeals dockets show that the petitioner did not
seek review by the Wisconsin Supreme Court of the Wisconsin
Court of Appeals' ...