United States District Court, W.D. Wisconsin
JEFFREY T. ZIEGLER, Petitioner,
STATE OF WISCONSIN, Respondent.
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE.
T. Ziegler has filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254, challenging two state court
convictions from Dane County. Ziegler has paid the filing fee
and the petition is now before the court for preliminary
review pursuant to Rule 4 of the Rules Governing Section 2254
Cases. For reasons set forth briefly below, the petition must
County Case No. 03CF2548, Ziegler was convicted upon his plea
of no contest to charges of stalking and bail jumping as a
repeat offender. In Dane County Case No. 03CM3691, Ziegler
was similarly convicted of invasion of privacy. On August 31,
2006, Ziegler was sentenced to serve two years and six months
in prison, followed by a two-year term of supervised release,
for a total sentence of four-and-a-half (4½) years in
Case No. 03CF2548. On that same day, the circuit court
sentenced Ziegler to serve one year in prison followed by a
one-year period of extended supervision for a total sentence
of two years in Case No. 03CM3691, both consecutive to the
sentence that he received in 03CF2548.
filed a motion for post-conviction relief from the judgment,
arguing that he was denied effective assistance of counsel.
After the trial court denied that motion, Ziegler pursued a
direct appeal. On January 22, 2010, the Wisconsin Court of
Appeals summarily affirmed the convictions, as well as the
trial court's decision to deny Ziegler's motion for
post-conviction relief. The Wisconsin Supreme Court denied
Ziegler's petition for review on July 26, 2010.
2, 2014, Ziegler filed this pending federal habeas corpus
petition seeking relief from Case Nos. 03CF2548 and 03CM3691
under 28 U.S.C. § 2254, apparently claiming that he is
entitled to relief because: (1) his plea was invalid; (2) he
was denied effective assistance of counsel; (3) he was denied
sentence credit; (4) his punishment violated the prohibition
against double jeopardy; and (5) the state court erred by
failing to hold an evidentiary hearing on these claims.
federal habeas corpus statutes give district courts limited
jurisdiction to entertain petitions for habeas corpus relief
from persons who are “in custody in violation
of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3) (emphasis added);
28 U.S.C. § 2254(a). Moreover, for this jurisdiction to
attach, the Supreme Court has clarified that a habeas corpus
petitioner must be “in custody” at the time the
petition is filed. Carafas v. LaVallee, 391 U.S.
234, 238 (1968).
jurisdiction purposes, the importance of a petitioner's
custody status cannot be minimized. The custody element is
“required not only by repeated references in the
[federal habeas corpus statutes], but also by the history of
the great writ.” Carafas, 381 U.S. at 238
(footnotes and internal citations omitted). “Its
province, shaped to guarantee the most fundamental of all
rights, is to provide an effective and speedy instrument by
which judicial inquiry may be had into the legality of the
detention of a person.” Id. (citing Peyton
v. Rowe, 39 U.S. 54 (1968)); see also Brown v.
Allen, 344 U.S. 443, 533 (1953) (Jackson, J.,
concurring) (“The historic purpose of the writ has been
to relieve detention by executive authorities without
petitioner has provided a copy of the judgments in Case Nos.
03CF2548 and 03CM3691, these exhibits show that the sentences
received in those cases have both been discharged.
Specifically, petitioner was sentenced on August 31, 2006, to
consecutive sentences of imprisonment and extended
supervision totaling six-and-a-half years. Thus, the
sentence of imprisonment and supervision in Case No. 03CF2548
expired in 2011, while the consecutive sentence of
imprisonment and supervision in 03CM3691 expired in 2013.
Supreme Court has held that a petitioner is not in custody
for purposes of federal habeas corpus review once the
challenged sentence has fully expired. See Maleng v.
Cook, 490 U.S. 488, 492 (1989). While the petitioner
refers to being held on “Parole” in Dane County,
Wisconsin, he does not identify any state official in charge
of his custody or allege facts showing that he is otherwise
restrained as a result of these challenged convictions. Under
these circumstances, the federal writ of habeas corpus is not
available to review his convictions. See Lackawanna
County Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001).
Accordingly, his petition must be dismissed for lack of
subject matter jurisdiction under the federal habeas corpus
statutes. See Maleng, 490 U.S. at 492-93.
Rule 11 of the Rules Governing Section 2254 Cases, the court
must issue or deny a certificate of appealability when
entering a final order adverse to petitioner. A certificate
of appealability will not issue unless the petitioner makes
“a substantial showing of the denial of a
constitutional right, ” 28 U.S.C. § 2253(c)(2),
which requires a petitioner to demonstrate “that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). Under the controlling standard, this requires a
petitioner to show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were ‘adequate to deserve
encouragement to proceed further.'”
Miller-El, 537 U.S. at 336. Where denial of relief
is based on procedural grounds, the petitioner must show not
only that “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right, ” but also that they “would
find it debatable whether the district court was correct in
its procedural ruling.” Slack, 529 U.S. at
Rule 11 allows a court to ask the parties to submit arguments
on whether a certificate should issue, it is not necessary to
do so in this case because the question is not a close one.
For the reasons stated above, reasonable jurists would not
debate whether the ...