United States District Court, W.D. Wisconsin
PHILIP P. CAPONE, III, Petitioner,
CHIP MEISNER and STATE OF WISCONSIN, Respondents.
OPINION & ORDER
D. PETERSON District Judge.
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,
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.
the following facts from the original petition, Dkt. 1, the
amended petition, Dkt. 5, and their exhibits.
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.
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.
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.
Screening of the petitions
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).
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:
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 ...