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Thompson v. Foster

United States District Court, E.D. Wisconsin

June 26, 2018

MICHAEL L. THOMPSON, Petitioner,
v.
BRIAN FOSTER, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 1), DENYING CERTIFICATE OF APPEALABILITY AND DISMISSING CASE

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         On 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.

         I. Background

         On June 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 at 2.

         It 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.

         On 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.

         The court received the federal habeas petition on April 3, 2017- approximately eleven months after the Wisconsin Supreme Court denied review. Dkt. No. 1.

         II. Rule 4 Screening

         A. Standard

         Rule 4 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.

         A court 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).

         The 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).

         Finally, 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. ...


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