United States District Court, E.D. Wisconsin
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
PAMELA PEPPER United States District Judge .
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.
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.
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.
Motion to Proceed Without Prepaying the Filing Fee (Dkt. No.
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.
Rule 4 Screening
Rule 4 of the Rules Governing §2254 Proceedings
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 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.
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.