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Robinson v. Malone

United States District Court, E.D. Wisconsin

July 6, 2018

JERMEL ROBINSON, Petitioner,
v.
RONALD MALONE, Respondent.

          ORDER DENYING MOTION TO PROCEED WITHOUT PREPAYING THE FILING FEE (DKT. NO. 2) 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 June 4, 2018, Jermel Robinson, who is representing himself, filed a petition for habeas corpus under 28 U.S.C. §2254. Dkt. No. 1. This order denies the petitioner's motion to proceed without prepaying the $5.00 filing fee, and screens the petition under Rule 4 of the Rules Governing Section 2254 Cases. The petitioner does not challenge his conviction; he alleges only that he “was denied 84 days of credit” to which he was entitled under Wisconsin law. Id. at 2. Because the petitioner has failed to state a cognizable constitutional claim and has failed to exhaust his remedies in state court, the court will deny the petition.

         I. Background

         The defendant's petition states that authorities arrested him on January 5, 2011, and that he eventually plead no contest to criminal damage to an ATM in Waukesha County Circuit Court. Dkt. No. 1 at 4. On November 28, 2011, the state-court judge sentenced him to serve eighteen months in custody, followed by eighteen months of extended supervision. Id. at 1.

         The petitioner says that he filed a direct appeal of the conviction, but describes that appeal as a motion for sentence credit under Wis.Stat. §973.55. Id. at 2. A review of the docket, available on the Wisconsin Circuit Court Access Program, shows that the petitioner filed several post-conviction motions for sentence credit and for an amended judgment of conviction-one in 2012 and three in 2018. State v. Robinson, No. 2010CF001331 (Waukesha County Circuit Court), located at https://wcca.wiscourts.gov. The petitioner admits that he did not seek further review by the Wisconsin Supreme Court. Dkt. No. 1 at 2.

         II. Motion to Proceed Without Prepaying the Filing Fee (Dkt. No. 2)

         The petitioner asked the court to allow him to proceed without prepaying the $5.00 filing fee. Dkt. No. 2. His trust account statement, however, shows that he has had anywhere from $12.54 at the low level to $70.69 at the upper level in his trust account during the couple of months prior to the date on which he filed his petition. Dkt. No. 3. It is not clear why the petitioner cannot pay the $5.00 filing fee. The court will deny his motion, and order him to pay the fee.

         III. 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 because 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 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. ...


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