United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge
Tyrone Davis Smith, who is currently incarcerated at the Fox
Lake Correctional Institution in Fox Lake, Wisconsin, has
filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2241, in which he challenges his 2007 conviction for
first degree sexual assault of a child in the Circuit Court
for Milwaukee County. He also has asked the court for
assistance in the appointment of counsel. Dkt. #8. Petitioner
is proceeding pro se and has paid the $5 filing fee, so his
petition is ready for screening. Under Rule 4 of the Rules
Governing Section 2254 Cases, I must dismiss the petition if
it plainly appears from the petition and any attached
exhibits that petitioner is not entitled to relief. Rule
1(b), Rules Governing Section 2254 Cases (Rule 4 also
applicable to habeas petitions not brought under §
2254). Because petitioner has invoked the wrong statute, his
petition will be dismissed and his motion for appointment of
counsel will be denied.
correct vehicle for a state prisoner seeking relief from a
state court conviction is 28 U.S.C. § 2254, which
“is the exclusive remedy for a state prisoner who
challenges the fact or duration of his confinement and seeks
immediate or speedier release.” Heck v.
Humphrey, 512 U.S. 477, 481 (1994). See also Walker
v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000)
(“[Section] 2254 [is] 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 §
2254.”). I will not automatically re-characterize the
petition as being brought pursuant to § 2254 because
that statute contains a strict limit on the number of §
2254 petitions an inmate may file, and re-characterizing the
petition may make it significantly more difficult for a
litigant to file another motion. Castro v. United
States, 540 U.S. 375, 382-83 (2003); 28 U.S.C. §
2244(b)(1) (claim presented in second or successive §
2254 application that was presented in prior application
shall be dismissed). This is particularly important in
petitioner's case because he alleges that he filed a
§ 2254 petition in the U.S. District Court for the
Eastern District of Wisconsin in 2009. Federal court records
available electronically also show that petitioner has a
§ 2241 petition pending in that court.
Rule 11(a) of the Rules Governing Section 2254 Cases, the
court must issue or deny a certificate of appealability when
entering a final order adverse to a defendant. A certificate
of appealability is not required to appeal from a properly
filed motion under § 2241. Behr v. Ramsey, 230
F.3d 268, 270 (7th Cir. 2000) (“no certificate of
appealability is required in proper § 2241 cases like
this one”). However, because the petition in this case
could be interpreted as an untimely or successive petition
under § 2254, I will address the issue of the
certificate of appealability.
obtain a certificate of appealability, the applicant must
make a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2);
Tennard v. Dretke, 542 U.S. 274, 282 (2004). This
means 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 v. Cockrell, 537 U.S. 322,
336 (2003). Although the rule 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. In this case, there is no
question that petitioner cannot proceed under § 2241.
Accordingly, I will not issue a certificate of appealability.
petition for a writ of habeas corpus filed by petitioner
Tyrone Davis Smith, dkt. #1, is DISMISSED.
Petitioner is DENIED a certificate of appealability.
Petitioner's motion for the appointment of counsel, dkt.
#8, is DENIED.
clerk of court is directed to enter judgment for respondent
and close this case.