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Norris v. Kemper

United States District Court, W.D. Wisconsin

August 28, 2017

DARYL O. NORRIS, Petitioner,
v.
PAUL S. KEMPER, Respondent.

          OPINION AND ORDER

          BARBARA B. CRABB District Judge.

         Petitioner Daryl O. Norris, a recently-released state prisoner who was convicted of reckless endangerment in Dane County, Wisconsin, in 2010, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging both his classification by the Wisconsin Department of Corrections as a “sex offender” and the subsequent revocation of his supervised release for failure to abide by its terms and conditions. In a previous order, I dismissed petitioner's claim that it was inconsistent with the terms of his plea agreement to make compulsory sex offender treatment a condition of his supervised release. Dkt. #6. I then ordered the state to respond to petitioner's claims that (1) the department arbitrarily imposed a “sex offender” label in violation of his rights under the due process clause of the Fourteenth Amendment; (2) the reason for his revocation was a fabricated pretext for retaliation in violation of the First Amendment; and (3) his May 2013 revocation hearing violated his right to due process as required under the Fourteenth Amendment. Id.; dkt. #20. Respondent Paul S. Kemper, the warden of the Racine Correctional Institution, filed a response to the petition, which has now been fully briefed and is ready for review.

         After reviewing the filings, I find that all of petitioner's claims are procedurally defaulted because he did not exhaust his state court remedies before filing this petition. In particular, petitioner did not seek judicial review of the department's decision to place him in sex offender treatment as a condition of his supervised release. Then, although he did challenge his subsequent revocation in state court, he failed to pursue all of his appellate options before seeking relief in this court. As a result, and for the reasons stated in more detail below, his petition must be dismissed.

         From the petition and the supporting documents submitted by both parties, I find the following facts.

         FACTS

         On April 23, 2010, petitioner Daryl O. Norris was convicted in the Circuit Court for Dane County of one count of second-degree recklessly endangering safety. (He also was charged with kidnapping and second-degree sexual assault, but the state dismissed those charges pursuant to a plea agreement and petitioner pleaded no-contest to the reckless endangerment charge.) The court withheld sentence and placed petitioner on two years' probation, but the Department of Corrections revoked his probation in 2011 and the court then sentenced him to a sentence of six years and six months' imprisonment. In September 2012, petitioner was released from prison to extended community supervision on the condition that he participate in sex offender treatment. Petitioner objected to that requirement. On the advice of his parole officer, he challenged his sex offender classification and treatment requirement through the department's administrative review process. After that challenge failed, petitioner did not seek review of the department's decision in state court.

         Although petitioner dropped his legal challenge, he declined to heed the terms and conditions of his release, and his parole officer recommended revocation. At a hearing on May 13, 2013, an administrative law judge revoked petitioner's supervised release after finding that the Department of Corrections had proven that petitioner had (1) failed to participate in required sex offender treatment; (2) failed to participate in other treatment or programming as an alternative to revocation; and (3) refused to comply with jail policies and staff orders. Petitioner appealed the administrative law judge's decision within the department. When that appeal failed, he filed a petition for certiorari review in the Circuit Court for Dane County, which denied the petition and affirmed the administrative decision in a written order dated April 14, 2014. Dkt. #24-3. Petitioner then appealed to the Wisconsin Court of Appeals on June 15, 2015, arguing that his sex offender treatment requirement was unconstitutional and a violation of his plea agreement, that the Department of Corrections had retaliated after he sought judicial review, and that the revocation process failed to comply with due process requirements. On January 20, 2016, while his appeal was still pending in the court of appeals, petitioner also filed a petition for a supervisory writ in the Wisconsin Supreme Court, under Wis.Stat. §§ 809.51 and 809.71, raising the same arguments.

         Petitioner filed his habeas petition in this court on April 5, 2016. The following day, the Wisconsin Supreme Court denied his petition for a supervisory writ without opinion or explanation. Dkt. #4-2. On July 12, 2016, the state court of appeals issued a summary disposition and short written opinion affirming the circuit court's decision. Dkt. #24-7. Petitioner did not file a petition for direct review of the court of appeals' decision in the state supreme court.

         Since May 2013, petitioner has been reincarcerated (and subsequently released) at least three times for violating the sex offender supervised release rules. Paul S. Kemper was substituted by the government as respondent on September 13, 2016, dkt. #23, because he is the warden of the Racine Correctional Institution, where petitioner was then incarcerated. On March 27, 2017, petitioner filed a notice with the court changing his home mailing address from the Racine Correctional Institution to a residential address in Madison, Wisconsin. Dkt. #44. Neither party has said whether petitioner is currently on supervised release or whether he has served his entire sentence.

         OPINION

         As an initial matter, even if petitioner is currently on supervised release or has served his entire sentence, it appears that he may challenge his previous revocation by seeking a writ of habeas corpus, and his petition is not moot by reason of his no longer being held in state custody. A.M. v. Butler, 360 F.3d 787, 789-90 (7th Cir. 2004); Spencer v. Kemna, 523 U.S. 1, 7 (1998) (“Spencer was incarcerated by reason of the parole revocation at the time the petition was filed, which is all the ‘in custody' provision of 28 U.S.C. § 2254 requires.”). See also cases cited in the earlier opinion in this case, dkt. #6, at 4 (holding that habeas petition is proper vehicle for challenging parole condition requiring psychological treatment, as well as civil commitment based on violation of terms of release). In any event, at least as a matter of theory or principle, respondent does not question petitioner's right to bring the kinds of challenges he is advancing in a habeas petition.

         However, before I can address the merits and grant any relief under § 2254, petitioner must exhaust all remedies available to him in state court. This means that he must fairly present his claims through a complete round of state-court review. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v, Boerckel, 526 U.S. 838, 848 (1999); Lemons v. O'Sullivan, 54 F.3d 357, 360 (7th Cir. 1995). In Wisconsin, supervision decisions by the Department of Corrections are challenged and reviewed through the department's administrative procedures, and then by a state trial court by means of a writ of certiorari, followed by the Wisconsin Court of Appeals and Wisconsin Supreme Court. E.g., Mittelstadt v. Wall, 14-cv-423-jdp, 2015 WL 5440661, at *2-3 (W.D. Wis. Sept. 14, 2015) (citing state law provisions); Sanders v. Paquin, 09-cv-472-bbc, 2009 WL 2450362, at *4 (W.D. Wis. Aug. 7, 2009) (to satisfy exhaustion requirement, § 2254 petitioner “must assert each of his claims in a petition for review to the Wisconsin Supreme Court”) (citing Moore v. Casperson, 345 F.3d 474, 485-86 (7th Cir. 2003)). Petitioner must exhaust all of these state remedies as to each claim before I can consider the claim in a habeas petition. If he has failed to do so for any given claim, and is unable to show both prejudice and good cause for the failure, then that claim is procedurally defaulted and must be dismissed. Smith v. Gaetz, 565 F.3d 346, 351-52 (7th Cir. 2009).

         Petitioner brings due process and other claims challenging two decisions by the Wisconsin Department of Corrections. First, he contends that the department's initial requirement that he undergo sex offender treatment as a condition of his supervised release violated the due process clause. Second, he contends that the administrative law judge's subsequent decision to revoke his supervised release was retaliation for petitioner's previous challenges regarding his sex offender status, in violation of his First Amendment rights, and that the revocation process and hearing did not comply with due process requirements. I will address each contention in turn.

         A. Claim Challenging Sex Offender Classification and ...


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