United States District Court, E.D. Wisconsin
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
PETITION (DKT. NO. 14); DENYING WITHOUT PREJUDICE PETITION
FOR A WRIT OF HABEAS CORPUS (DKT. NO. 1); AND DENYING AS MOOT
ALL OTHER PENDING MOTIONS
PAMELA PEPPER United States District Judge.
October 24, 2016, Shafia Jones filed a petition for writ of
habeas corpus under 28 U.S.C. §2254. Dkt. No.
1. She challenges her 2016 conviction on five grounds: (1)
that the Fond du Lac County Circuit Court did not have
subject matter jurisdiction over her case; (2) that she is
innocent; (3) that her trial counsel was ineffective; (4)
that her conviction violated the Double Jeopardy clause; and
(5) that she was denied a jury trial. Id. The court
screened the petition, and set a deadline for the respondent
to answer. Dkt. No. 8. In lieu of an answer, the respondent
filed a motion to dismiss for failure to exhaust state
remedies (or, in the alternative, for procedural default).
Dkt. No. 14. The parties have fully briefed the issues. The
court will deny the petition.
with one count of armed robbery, one count of robbery of a
financial institution, and two counts of bail jumping, the
petitioner entered an Alford plea to the robbery
charge, and the Fond du Lac County Circuit Court dismissed
and read in the other two charges. Dkt. No. 15 at 2, 4.
See North Carolina v. Alford, 400 U.S. 25 (1970)
(holding that a court may accept a defendant's guilty
plea even if it is accompanied by the defendant's
protestations of innocence). Two days later, the circuit
court allowed the petitioner to withdraw her plea.
Id. At the state's request, however, the circuit
court reconsidered that decision. Id. at 4-5. On
January 22, 2016, the circuit court entered the judgment of
conviction on the single count of robbery of a financial
institution. Dkt. No. 15-6 at 1.
circuit court sentenced the petitioner to serve four years of
confinement, followed by six years of extended supervision.
Id. Although the petitioner filed a notice of intent
to appeal, dkt. no. 15 at 5, she never followed up by filing
either a post-conviction motion or a direct appeal,
id. at 6. When the petitioner's post-conviction
counsel withdrew, the circuit court extended the
petitioner's appeal deadline until September 7, 2016.
Id. Again, the defendant failed to file an appeal,
and the conviction became final on that date on September 7,
she never filed an appeal, however, the defendant filed
multiple state habeas petitions. Dkt. Nos. 15-1,
15-2, 15-10. In a written order denying one of those
petitions, the Wisconsin Court of Appeals stated that the
“petition must fail, as [the petitioner] has not
demonstrated that she has no other adequate remedy available
in law.” Dkt. No. 15-8 at 2. Because the petitioner
failed to pursue other available remedies aside from filing
habeas petitions, the respondent asks the court to
deny this federal petition for failure to exhaust state
remedies. Dkt. No. 15 at 7-8. In the alternative, the
respondent asks that if the court finds that the petitioner
no longer has any state remedies, it deny the petition on the
ground that the petitioner has procedurally defaulted on her
claims. Id. at 7.
28 U.S.C. §2254(b)(1)(A), federal courts cannot grant
habeas relief unless a petitioner first exhausts her
available state court remedies. Generally, a court considers
a claim exhausted only 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). But,
“state-court remedies are [also] described as having
been ‘exhausted' when they are no longer available,
regardless of the reason for their unavailability.”
Id. at 92-93. Thus, “[a] specific claim is not
considered exhausted if the petitioner ‘has the right
under the law of the State to raise, by any available
procedure, the question presented.'” Brown v.
Wisconsin, No. 14-C-0872, 2015 WL 631288, at *2 (E.D.
Wis. Feb. 12, 2015), appeal dismissed (Mar. 13,
2015), certificate of appealability denied (June 25,
2015) (quoting 28 U.S.C. §2254). If a federal district
court finds that a petitioner has not exhausted all of her
state claims, it must dismiss the federal habeas
petition without prejudice, to allow the petitioner to return
to state court. See Castille v. Peoples, 489 U.S.
346, 349 (1989); Rose v. Lundy, 455 U.S. 509, 522
(1982); see 28 U.S.C. § 2254(b)(1)(A).
respondent argues that even though the petitioner filed
various petitions for state writs of habeas corpus,
she has not exhausted her claims in state court. Dkt. No. 15
at 7. The court agrees.
petitioner cannot petition for a writ of habeas
corpus in a Wisconsin state court without demonstrating
“that there is no other adequate remedy available in
the law.” State ex rel. Krieger v. Borgen, 687
N.W.2d 79, 82 (Wis. Ct. App. 2004) (citing State ex rel.
Haas v. McReynolds, 643 N.W.2d 771, 775-76 (Wis. 2002)).
In situations where the petitioner failed to file a direct
appeal or immediate post-conviction motion, Wis.Stat.
§974.06 provides an alternative:
After the time for appeal or postconviction remedy provided
in s. 974.02 has expired, a prisoner in custody
under sentence of a court . . . claiming the right to be
released upon the ground that the sentence was imposed in
violation of the U.S. constitution or the constitution or
laws of this state, that the court was without jurisdiction
to impose such sentence, or that the sentence was in excess
of the maximum authorized by law or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.
Stat. §974.06(1). “The postconviction motion
procedure under § 974.06 was designed to replace habeas
corpus as the primary method in which a defendant can attack
his conviction after the time for appeal has expired.”
State ex rel. Krieger, 687 N.W.2d at 82 (quoting
State v. Escalona-Naranjo, 517 N.W.2d 157, 160 (Wis.
1994)) (internal citations omitted). A state inmate may make
this type of motion “at any time.” Wis.Stat.
§974.06(2). So-in cases where an inmate did not file a
post-conviction motion or direct appeal, the inmate may not
file a state habeas petition under Wis.Stat.
§782.01 until she first takes advantage of the
post-conviction procedures under Wis.Stat. §974.06.
State ex rel. Krieger, 687 N.W.2d at 82 .
the petitioner failed to file a direct appeal, even though
the state court directed her to before her time to appeal
expired. Dkt. No. 15-8 at 2. Nor did she file a
post-conviction motion. Instead, she filed several state
habeas petitions. Dkt. Nos. 15-1, 15-2, 15-10. The
petitioner still has an available remedy under state law-she
still may file a motion under ...