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Moseley v. Kemper

United States District Court, E.D. Wisconsin

June 27, 2018

TIMOTHY D. MOSELEY, Petitioner,
v.
PAUL S. KEMPER, Respondent.

          ORDER SCREENING HABEAS PETITION (DKT. NO. 1) AND REQUIRING THE RESPONDENT TO FILE AN ANSWER OR OTHERWISE RESPOND

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         On February 2, 2018, Timothy D. Moseley, who is representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his March 27, 2013 conviction in Columbia County Circuit Court for one count of second-degree sexual assault of an intoxicated victim and twelve counts of capturing an image of nudity. 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 it does not plainly appear from the face of the petition that the petitioner is not entitled to relief, the court will order the respondent to answer or otherwise respond.

         I. Background

         On November 14, 2012, a jury convicted the petitioner of one count of second-degree sexual assault of an intoxicated victim and twelve counts of capturing an image of nudity. Dkt. No. 1 at 2; State v. Moseley, No. 2011CF000412, Columbia County Circuit Court, located at https://wcca.wicourts.gov. The petitioner says that the court entered judgment on March 27, 2013, id. at 1, but the electronic docket shows that the court entered the original judgment on March 5, 2013, and an amended judgment on March 27, 2013. State v. Moseley, No. 2011CF000412 (Columbia County Circuit Court), located at https://wcca.wiscourts.gov.

         After obtaining numerous extensions of time, the petitioner filed a direct appeal on August 31, 2015. Id. The Wisconsin Court of Appeals affirmed the conviction on July 22, 2016. Dkt. No. 1 at 2; State v. Moseley, No. 2011CF000412 (Columbia County Circuit Court), located at https://wcca.wiscourts.gov. The Wisconsin Supreme Court denied his petition for review on February 16, 2017. Id. The petitioner filed his federal habeas petition on February 23, 2018. 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 relief in the district court. 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 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. Boerckel, 526 U.S. 838, 848 (1999); Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000).

         B. The Petition

         The petitioner alleges three grounds for relief: (1) double jeopardy (arguing that he was prosecuted for a crime for which he had already been convicted in another county); (2) double jeopardy (arguing that he was prosecuted for a crime for which he had been acquitted in another county); and (3) prosecution in violation of the Constitution (arguing that two of the Wisconsin ...


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