United States District Court, E.D. Wisconsin
TIMOTHY D. MOSELEY, Petitioner,
PAUL S. KEMPER, Respondent.
ORDER SCREENING HABEAS PETITION (DKT. NO. 1) AND
REQUIRING THE RESPONDENT TO FILE AN ANSWER OR OTHERWISE
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
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
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
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.
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
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
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).
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).
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 ...