United States District Court, E.D. Wisconsin
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS ON PRELIMINARY REVIEW
E. JONES, UNITED STATES MAGISTRATE JUDGE.
Martinez is currently incarcerated at Waupun Correctional
Institution awaiting trial in Fond du Lac County Circuit
Court. He has filed an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241, alleging that the
Circuit Court violated his constitutional rights when it
determined that he had forfeited his Sixth Amendment right to
the assistance of counsel. For the following reasons, the
Court will recommend that Mr. Griffin's petition be
dismissed on preliminary review.
Screening of Federal Habeas Actions
accordance with Rule 1(b) of the Rules Governing Section 2254
Cases in the United States District Courts, as well as Civil
Local Rule 9(a)(2) (E.D. Wis.), the Court applies the Rules
Governing Section 2254 Cases to petitions for a writ of
habeas corpus under § 2241. Therefore, the Court must
now screen Mr. Martinez's application in accordance with
Rule 4 of the Rules Governing Section 2254 Cases, which
states the following:
If it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner. If the petition is
not dismissed, the judge must order the respondent to file an
answer, motion, or other response within a fixed time, or to
take other action the judge may order.
this initial review, the Court generally analyzes three
issues: whether the petitioner has set forth cognizable
constitutional or federal law claims, whether the petitioner
has exhausted available state remedies, and whether the
petition is timely.
October 8, 2013, Mr. Martinez was charged in Fond du Lac
County Circuit Court with stalking, misdemeanor battery,
disorderly conduct, strangulation and suffocation,
substantial battery, and false imprisonment in two
consolidated criminal cases. See Petitioner's
Application for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241 By a Person in Custody 4, ECF No. 1;
Petitioner's Memorandum of Law in Support of Petition for
Writ of Habeas Corpus 1, ECF No. 3. During a hearing on
September 24, 2015, the Circuit Court granted a motion to
withdraw filed by Mr. Martinez's fourth court-appointed
lawyer. See Pet'r's Mem. 2; Exhibit to
Petitioner's Memorandum of Law in Support of Petition for
Writ of Habeas Corpus, ECF No. 3-1. The Circuit Court also
determined-over Mr. Martinez's objection- that Mr.
Martinez had forfeited his right to counsel based on his
actions, including his refusal to follow court directives and
to work with his lawyers. Ex. at 8-10. The Circuit Court thus
refused to appoint Mr. Martinez a new lawyer, though it did
appoint him one as standby counsel.
Martinez was granted leave to appeal the Circuit Court's
non-final order. On April 19, 2017, the Wisconsin Court of
Appeals affirmed the Circuit Court's decision. The
Wisconsin Supreme Court denied Mr. Martinez's petition
for review on July 11, 2017. Pet'r's Mem. 2.
Martinez filed the present application on February 7, 2018,
alleging “that his Sixth Amendment right to the
assistance of counsel was unconstitutionally
forfeited.” Pet'r's Appl. 10. The matter was
randomly assigned to this Court, and Mr. Martinez consented
to magistrate judge jurisdiction. See Consent to
Proceed Before a Magistrate Judge, ECF No. 7. Mr. Martinez
asks the Court to stay his state-court proceedings, enjoin
the state court from forfeiting his right to counsel, appoint
him a lawyer to assist with this application, and appoint him
a lawyer to assist with his pending state-court trial
proceedings. Pet'r's Appl. 12; Pet'r's Mem.
1, 7-8 (citing 28 U.S.C. § 2251). Mr. Martinez asserts
that he “will suffer irreparable injury if [he]
proceeds to trial without the assistance of counsel.”
Pet'r's Appl. 12.
preliminary review, the Court finds that it lacks
jurisdiction over Mr. Martinez's habeas application. For
one, it does not appear that Mr. Martinez even qualifies as a
pretrial detainee under § 2241. A state pretrial
detainee may seek habeas relief under § 2241 if he
“is in custody in violation of the Constitution or laws
or treaties of the United States.” See 28
U.S.C. § 2241(c)(3); see also Virsnieks v.
Smith, 521 F.3d 707, 717 (7th Cir. 2008). But Mr.
Martinez is currently incarcerated for violating the terms of
his extended supervision on a previous case. See
Wisconsin Department of Corrections Offender Locator,
https://appsdoc.wi.gov/lop/home.do (search for
Vincent Martinez) (last visited Feb. 21, 2018). The
constitutional violation alleged in Mr. Martinez's
application therefore is not the basis for his current
Mr. Martinez's application does not seek release from
custody based on the alleged violation of his Sixth Amendment
right to counsel, which is a predicate of habeas jurisdiction
under § 2241(c)(3). Even if the Court were to agree with
Mr. Martinez's argument, essentially the only relief he
would be entitled to is the appointment of counsel in his
ongoing state criminal case. Such a claim is not cognizable
on federal habeas review. See Washington v. Smith,
564 F.3d 1350, 1351 (7th Cir. 2009) (observing that
“prisoners who are not seeking earlier or immediate
release are not seeking habeas corpus relief”).
Seventh Circuit has explained, “[s]tate prisoners who
want to challenge their convictions, their sentence, or
administrative orders revoking good-time credits …
must seek habeas corpus, because they contest the fact or
duration of custody.” Moran v. Sondalle, 218
F.3d 647, 650-51 (7th Cir. 2000). On the other hand,
“[s]tate prisoners who want to raise a constitutional
challenge to any other decision” as Mr. Martinez does
here, “must instead employ § 1983 or another
statute authorizing damages or ...