United States District Court, E.D. Wisconsin
REPORT AND RECOMMENDATION
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
Robert Lasecki is incarcerated pursuant to the judgment of a
Wisconsin Circuit Court. On March 30, 2018, he filed a
petition for a writ of habeas corpus. Lasecki has paid the
filing fee and consented to the full jurisdiction of a
magistrate judge. The court must now screen the petition in
accordance with Rule 4 of the Rules Governing Section 2254
Cases, which states:
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.
reviewed the petition, the court concludes that it is plainly
apparent that the petitioner is not entitled to relief.
Therefore, the court will recommend that the petition be
was convicted of two misdemeanor counts of failing to return
a security deposit. See Wis. Stat. § 100.26(3);
Wis. Adm. Code ATCP 134.01. He represented himself at trial
and was convicted by a jury. On March 27, 2018, Lasecki was
sentenced to two years of probation, but as a condition of
probation was ordered to serve time in jail. (ECF No. 1-1 at
23-24.) As a result, he is currently incarcerated.
seeking a federal writ of habeas corpus, a state prisoner
must exhaust available state remedies, 28 U.S.C. §
2254(b)(1), thereby giving the State the ‘opportunity
to pass upon and correct alleged violations of its
prisoners' federal rights.'” Baldwin v.
Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v.
Henry, 513 U.S. 364, 365 (1995) (per curiam) (internal
quotation marks omitted). Lasecki acknowledges that he made
no effort to exhaust his remedies in state court before
filing this petition. He states he has not done so
“[b]ecause there is no time, and my liberty is being
illegally detained, in county jail, at the present
time.” (ECF No. 1 at 13.)
the exhaustion of state remedies is an affirmative defense,
“there is no doubt that a federal court may raise sua
sponte a petitioner's failure to exhaust state law
remedies and apply that doctrine to bar federal litigation of
petitioner's claims until exhaustion is complete.”
Martin v. Superintendent, Heritage Trail Corr.
Facility, No. 1:16-cv-1242-JMS-DKL, 2016 U.S. Dist.
LEXIS 87188, at *3-4 (S.D. Ind. July 6, 2016) (quoting
Magouirk v. Phillips, 144 F.3d 348, 357 (5th Cir.
1998)); see also Kiser v. Johnson, 163 F.3d 326, 329
(5th Cir. 1999) (noting “the authority of courts to
raise non-jurisdictional affirmative defenses sua sponte in
habeas cases”); United States ex rel. Simmons v.
Gramley, 915 F.2d 1128, 1132 (7th Cir. 1990) (stating
“[t]he first duty of a district court, therefore, is to
examine the procedural status of the cause of action …
[including] whether the petitioner exhausted all available
state remedies and whether the petitioner raised all his
claims during the course of the state proceedings”);
Belmares v. Schmidt, 2016 U.S. Dist. LEXIS 114754
(E.D. Wis. Aug. 26, 2016) (dismissing petition at Rule 4
screening for petitioner's failure to make any attempt to
exhaust his claims).
concern for an expeditious resolution is an insufficient
basis to disregard the principles of comity that underlie the
exhaustion requirement. There is a state corrective process
of which Lasecki has not yet availed himself. See 28
U.S.C. § 2254(b)(1)(B)(i). State courts are capable of
resolving appeals quickly if justice so requires. In extreme
cases the state court's unjustifiable delay may excuse
the exhaustion requirement. Jackson v. Duckworth,
112 F.3d 878, 881 (7th Cir. 1997) (“Inordinate,
unjustifiable delay in a state-court collateral proceeding
excuses the requirement of petitioners to exhaust their
state-court remedies before seeking federal habeas corpus
relief.”) (citing Lane v. Richards, 957 F.2d
363, 365 (7th Cir. 1992); Lowe v. Duckworth, 663
F.2d 42, 43 (7th Cir. 1981); Dozie v. Cady, 430 F.2d
637, 638 (7th Cir. 1970)); see also Montgomery v.
Meloy, 90 F.3d 1200, 1205 (7th Cir. 1996); Wadley v.
Gaetz, 348 Fed.Appx. 148, 151 (7th Cir. 2009). But
before a federal court will intervene a petitioner must first
seek relief in the state court and give it a chance to
correct whatever errors the petitioner alleges. Because
Lasecki has made no effort to seek such relief, the court
finds no basis to conclude that “circumstances exist
that render such process ineffective to protect the rights of
the applicant, ” 28 U.S.C. § 2254(b)(1)(B)(ii).
Lasecki has not exhausted his remedies in state court.
See 28 U.S.C. § 2254(c). Therefore, his
petition should be dismissed.
IS THEREFORE RECOMMENDED that Lasecki's petition
for a writ of habeas corpus be dismissed.
IS FURTHER RECOMMENDED that the court deny Lasecki a
certificate of appealability.
attention is directed to 28 U.S.C. § 636(b)(1)(B) and
(C) and Fed.R.Civ.P. 72(b)(2) whereby written objections to
any recommendation herein or part thereof may be filed within
fourteen days of service of this recommendation. Objections
are to be filed in accordance with the Eastern District of
Wisconsin's electronic case filing procedures. Failure ...