United States District Court, E.D. Wisconsin
MICHAEL L. THOMPSON, Petitioner,
BRIAN FOSTER, Respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS (DKT. NO. 1), DENYING CERTIFICATE OF
APPEALABILITY AND DISMISSING CASE
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
April 3, 2017, Michael L. Thompson, who is representing
himself, filed a petition for writ of habeas corpus
under 28 U.S.C. §2254, challenging an August 27, 2015
amendment to his 1998 judgment of conviction in Kenosha
County. Dkt. No. 1. He has paid the $5.00 filing fee. This
order screens the petition under Rule 4 of the Rules
Governing Section 2254 Cases. Because the petitioner has
failed to state cognizable constitutional claims, the court
will deny the petition.
5, 1998, a jury convicted the petitioner on one count of
first-degree intentional homicide with use of a dangerous
weapon. See State v. Michael L. Thompson,
1995CF000456, Kenosha County Circuit Court, located at
https://wcca.wicourts.gov; Dkt. No. 5 at 2. The Kenosha
County Circuit Court sentenced him to life imprisonment
“[w]ith 50 years parole eligibility.” Dkt. No. 5
appears that years later, the Department of Corrections sent
a letter to the circuit court requesting clarification of the
original judgment. Dkt. No. 5 at 2. See also,
State v. Michael L. Thompson, 1995CF000456, Kenosha
County Circuit Court, docket notation dated August 11, 2015,
located at https://wcca.wicourts.gov. According to the
Wisconsin Court of Appeals, this letter stated that if a
court “sets a parole eligibility date under Wis.Stat.
§973.014(1)(b), it is required to set a date certain,
rather than ordering parole eligibility in ‘50
years.'” Id. On August 27, 2015, the
circuit court amended the judgment. State v. Michael L.
Thompson, 1995CF000456, Kenosha County Circuit Court,
docket notation dated August 27, 2015, located at
https://wcca.wicourts.gov. According to the court of appeals,
the amended judgment indicated that the petitioner would be
eligible for parole on August 17, 2048-fifty years after the
date of sentencing. Id.
November 3, 2015, the court of appeals denied the
petitioner's motion to extend the time to file a notice
of intent to pursue postconviction relief. Dkt. No. 5 at 2-3.
The court held that the petitioner's motion had not
established “that entry of the amended judgment
trigger[ed] the direct appeal rights provided in Wis.Stat.
Rule 908.30.” Id. Three weeks later, the same
court denied the petitioner's motion for reconsideration
of the November 3, 2015 order. Dkt. No. 5 at 4. The Wisconsin
Supreme Court initially dismissed the petitioner's
petition for review on February 17, 2016, stating that the
court of appeals had yet to render its final decision, but
about three months later-on May 5, 2016-the Wisconsin Supreme
Court denied the petition for review. Id. at 5.
court received the federal habeas petition on April
3, 2017- approximately eleven months after the Wisconsin
Supreme Court denied review. Dkt. No. 1.
Rule 4 Screening
of the Rules Governing §2254 Proceedings provides:
If it plainly appears form the face of 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.
allows a habeas petition to proceed unless it is
clear to the court that the petitioner is not entitled to
federal relief. At the screening stage, the court expresses
no view of the merits of any of the petitioner's claims.
Rather, the court reviews the petition and exhibits to
determine whether the petitioner alleges he is in custody in
violation of the “Constitution or laws or treaties of
the United States.” 28 U.S.C. §2254(a). If the
state court denied the petition on the merits, this court can
grant the petition only if the petitioner is in custody as a
result of: (1) “a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the United States Supreme
Court;” or (2) “a decision that was based on an
unreasonable application determination of the facts in light
of the evidence presented in the state court
proceeding.” 28 U.S.C. §2254(d).
court also considers whether the petitioner filed the
petition within the limitations period, exhausted his state
court remedies and avoided procedural default. Generally, a
state prisoner must file his habeas petition within
one year of the judgment becoming final. 28 U.S.C.
§2254(d)(1)(A). In addition, the state prisoner must
exhaust the remedies available in the state courts before the
district court may consider the merits of his federal
petition. 28 U.S.C. §2254(b)(1)(A). If the district
court discovers that the petitioner has included an
unexhausted claim, the petitioner either must return to state
court to exhaust the claim or amend his petition to present
only the exhausted claims. Rose v. Lundy, 455 U.S.
509, 510 (1982).
even if a petitioner has exhausted a claim, the district
court may still be barred from considering the claim if the
petitioner failed to raise the claim in the state's
highest court in a timely fashion or in the manner prescribed
by the state's procedural laws. See O'Sullivan v.