United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE.
Larry J. Brown filed this petition under 28 U.S.C. §
2254, challenging the fact that he has been unable to restore
his “good time” credit. This matter is currently
before the court for preliminary review under Rule 4 of the
Rules Governing Section 2254 Cases. For the following
reasons, however, this petition will be dismissed unless
petitioner satisfies the court that his petition is not
barred by his failure to exhaust his state court
November 11, 1983, Brown was sentenced in Milwaukee County
Circuit Court to 80 years of imprisonment in Case No.
1983K5190. While Brown became eligible for parole on
July 5, 1985, he has never been paroled.
13, 2011, when Brown was incarcerated at Waupun Correctional
Institution (“Waupun”), Warden William Pollard
issued a memorandum that set forth the circumstances in which
prisoners could restore good time. Prisoners were required to
submit a letter and money disbursement request to the records
department for copies of: (1) their disciplinary record, DOC
173; and (2) their conduct reports, to allow review of both.
However, Pollard also noted that offenses committed before
January 2001 would not be considered. While Pollard further
wrote that legal loans could not be used for the copy fee, he
also stated that the fee could be waived under limited
circumstances. Because Brown could not afford the copy fees,
he wrote to Pollard to request a waiver of the fee on
multiple occasions between 2011 and 2012, but Pollard denied
each of Brown's waiver requests. (Dkt. #1-1, at 4-6.)
November 7, 2012, Brown filed an inmate complaint,
WCI-2012-23663, challenging his inability to restore his good
time and in particular complaining that Pollard discriminated
against him during his conduct report hearing process. Brown
also argued that indigent prisoners had a right to try to
restore their good time credit, and that by requiring
prisoners to pay for copies of the materials necessary to
petition to restore that credit, his equal protection and due
process rights were being violated. On November 15, 2012, an
inmate complaint examiner (“ICE”) rejected
WCI-2012-23663. Brown appealed the rejection, and on November
27, 2012, Pollard affirmed it.
November 13, 2014, Brown was transferred from Waupun to the
Wisconsin Secure Program Facility (“WSPF”). At
WSPF, Brown requested his disciplinary records and a
calculation of how much good time he had lost. On April 21,
2015, WSPF's records department supervisor Diane Anderson
provided Brown with a response, in which she provided some of
his requested records. Anderson also calculated that he had
lost one year and 17 days of good time. Before WSPF's
warden could restore his good time, however, Brown was
transferred from WSPF to Columbia Correctional Institution
and June of 2015, Brown again tried to restore his good time
credit, submitting multiple requests to have the copy fees
waived. However, the waiver requests he submitted at Columbia
were also denied. Brown does not claim that he has appealed
any of the decisions related to his attempts at restoring his
good time credit through the Wisconsin court system, and the
court has been unable to locate any such proceedings in the
Wisconsin state court system.
filed his petition for a writ of habeas corpus in this court
on February 6, 2017, challenging his inability to restore his
good time credits. Disciplinary hearings that deprive an
inmate of good-time credit -- and, as a result, increase the
inmate's period of incarceration -- may serve as a basis
for requesting habeas relief. See Waletzki v.
Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994). However,
the court cannot reach the merits of Brown's claim
because his petition is subject to dismissal for his apparent
failure to exhaust his state court remedies.
courts may not review a habeas petition unless the prisoner
has fairly presented his claims “throughout at least
one complete round of state-court review, whether on direct
appeal of his conviction or in post-conviction
proceedings.” Richardson v. Lemke,
745 F.3d 258, 268 (7th Cir. 2014); 28 U.S.C. §
2254(b)(1). This exhaustion requirement has two components:
(1) the petitioner's claims must be exhausted, meaning
that there is no remaining state court with jurisdiction to
hear the claims; and (2) exhaustion must not be
attributable to the petitioner's failure to comply with
the state court system's procedural rules. Johnson v.
Foster, 786 F.3d 501, 504 (7th Cir. 2015); Perruquet
v. Briley, 390 F.3d 505, 514 (7th Cir. 2004).
respect to good time credits specifically, “Wisconsin
inmates have a judicial remedy - a petition for a common law
writ of certiorari to the Wisconsin state courts.”
McAtee v. Cowan, 250 F.3d 506, 508 (7th Cir. 2001)
(citing Walker v. O'Brien, 216 F.3d 626, 637
(7th Cir. 2000)). Thus, in Wisconsin, to challenge good time
decisions made by the Department of Corrections
(“DOC”), prisoners must go through the DOC's
administrative procedures, and then through a state trial
court by means of a writ of certiorari, followed by the
Wisconsin Court of Appeals and petition to the Wisconsin
Supreme Court. See Roberts v. Jenkins, 329 Fed.Appx.
670, 671 (7th Cir. 2009).
petitioner has procedurally defaulted his claims by failing
to exhaust, federal habeas review is available only if he can
demonstrate “cause for the default and actual prejudice
as a result of the alleged violation of federal law, ”
or that “failure to consider the claims will result in
a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991). “Cause”
for the default means “that some objective
factor” prevented compliance with the state's
procedural rules. Id. at 753.
“Prejudice” means that the alleged violations
“worked to [the petitioner's] actual and
substantial disadvantage, ” which infected his entire
proceeding with “error of constitutional
dimensions.” Perruquet v. Briley, 390 F.3d
505, 515 (7th Cir. 2004) (original emphasis). A fundamental
miscarriage of justice occurs when the petitioner presents
evidence showing that he is “actually innocent”
of the charges against him or the punishment imposed.
See, e.g., Dretke v. Haley, 541 U.S. 386,
Brown has failed to exhaust and is unable to show
both prejudice and good cause for the failure, then his claim
is procedurally defaulted and must be dismissed. However,
because procedural default is an affirmative defense, Brown
was not required to show cause and prejudice or actual
innocence in his original petition. Perruquet, 390
F.3d at 515. Nevertheless, a court may raise an affirmative
defense before requiring the state to answer, if “it is
so plain from the language of the complaint and other
documents in the court's files that it renders the suit
frivolous.” Gleash v. Yuswak, 308 F.3d 758,
760-61 (7th Cir. 2002) (“Under the circumstances there
was no point to serving the defendants with process, ...