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Capone v. Chip Meisner

United States District Court, W.D. Wisconsin

November 16, 2017

PHILIP P. CAPONE, III, Petitioner,
v.
CHIP MEISNER and STATE OF WISCONSIN, Respondents.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Pro se petitioner Philip P. Capone, III seeks a writ of habeas corpus under 28 U.S.C. § 2254. Capone alleges that his extended supervision is being revoked in an administrative proceeding and contends that the revocation proceeding should be in court before the sentencing judge. Before the court screened Capone's petition, he filed numerous motions, so this order will address Capone's (1) original habeas petition, Dkt. 1, and amended habeas petition, Dkt. 5; (2) motion for expedited disposition, Dkt. 3; (3) motion for bail pending final decision, Dkt. 4, and amended motion for bail pending final decision, Dkt. 6; and (4) emergency motion to stay administrative and court proceedings, Dkt. 1-3, and renewed motion to stay administrative and court proceedings, Dkt. 5-3.

         After reviewing Capone's submission, I conclude that Capone's petition has not identified a meritorious claim. The procedure for revoking one's extended supervision status need not be in court before a judge. I will deny Capone's petition on the merits, and all pending motions are denied as moot.

         BACKGROUND

         I draw the following facts from the original petition, Dkt. 1, the amended petition, Dkt. 5, and their exhibits.

         In August 2015, Capone was convicted for his fourth operating while intoxicated (OWI) offense in Green Lake County. In March 2016, The circuit court for Green Lake County sentenced him to two years of imprisonment followed by three years of extended supervision. In November 2016, Capone was released from prison early after completing an early release program and was placed on extended supervision.

         While on extended supervision, Capone got into “an argument and left for New York” in May 2017. Dkt. 5-1, at 4; accord Dkt. 5-4, at 1. He was arrested in New York for violating the terms of his extended supervision, and an administrative proceeding began for revoking his extended supervision. Capone had his final revocation hearing on September 25, 2017, and an attorney represented him at that hearing. Dkt. 5-4, at 3. He filed his original petition after the final revocation hearing, on October 13, 2017. Dkt. 1.

         At the final revocation hearing, the government contended that Capone violated the terms of his extended supervision in three ways: (1) in March 2017, Capone physically assaulted a woman; (2) in May and June 2017, Capone violated the “no contact order that was place[d] between him and” the woman; and (3) in May 2017, Capone left Wisconsin without prior approval from his extended-supervision agent. Id. Capone admitted the second and third allegations, and the administrative law judge reviewed the evidence and found that Capone violated his probation by physically assaulting a woman, as alleged. Id.

         ANALYSIS

         A. Screening of the petitions

         Capone has paid his five-dollar filing fee, so the next step is for me to screen Capone's original and amended habeas petitions. Dkt. 1 and Dkt. 5. Under Rule 4 of the Rules Governing Section 2254 Cases I must dismiss the petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” I must read pro se petitions generously under “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).

         Capone's sole habeas claim raised in both of his petitions is that he is entitled to litigate in court before the sentencing judge, not in an administrative proceeding before an administrative law judge. He says:

         The court is required to . . . find that petitioner has a Fourth, Fifth, Sixth, and Fourteenth Amendment right to have the sentencing court Judge:

√ Review the probation violation affidavit filed by the probation officer to determine, without delay, if probable cause exists to issue an arrest warrant ...

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