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Jones v. Humphreys

United States District Court, E.D. Wisconsin

May 8, 2017

SHAFIA JONES, Petitioner,
v.
ROBERT HUMPHREYS, [1]Respondent.

          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

          HON. PAMELA PEPPER United States District Judge.

         On 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.

         I. FACTUAL BACKGROUND

         Charged 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.

         The 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, 2016.

         Although 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.

         II. STANDARD

         Under 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).

         III. DISCUSSION

         The 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.

         A 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.

         Wis. 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 .

         Here, 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 ...


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