United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
Devon Lytrell Ewing, a former state of Wisconsin inmate at
the Kenosha Correctional Center, seeks a writ of habeas
corpus under 28 U.S.C. § 2254, challenging the
revocation of his probation. Ewing has paid the filing fee,
and this case is now before me for preliminary review under
Rule 4 of the Rules Governing Section 2254 Cases in United
States District Courts.
2010, Ewing was convicted of discharging a firearm from a
vehicle. He received 11 months of jail time, followed by
probation. In 2015, Ewing's probation officer recommended
revoking Ewing's probation because he had moved without
approval from his agent, and he acted in a disorderly manner
during an incident in which he hit a woman. Ewing's
probation was revoked, and he was sent to prison. In 2016, he
filed a state-court petition for writ of habeas corpus,
contending that he received ineffective assistance of counsel
at his revocation proceedings, that he was denied a
competency hearing, and that he had newly discovered evidence
that the victim recanted her original version of events.
state circuit court denied his petition in January 2018.
Ewing filed this petition in February, along with a letter in
which he asks this court to “take jurisdiction over my
federal habeas corpus and allow me to by pass the court of
appeals and Wisconsin Supreme Court” in part because
the judge who revoked him is not on the court of appeals and
he believes that he would not receive unbiased consideration
there. Dkt. 2.
dismiss the petition because it is clearly without merit, for
two reasons. The first is that it is almost certainly moot.
Ewing filed this petition in February 2018, but the Wisconsin
“Offender Locator” website shows that he was
released from prison back onto extended supervision in April.
even if the case wasn't moot, it would have to be
dismissed because Ewing cannot “bypass” the state
courts to bring his habeas claim here. Under the rules
governing habeas corpus petitions, a state prisoner must
fully exhaust his claims by presenting them at all levels of
review in the state courts before the federal court may
consider the claims on their merits. O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); 28 U.S.C. §
2254(b)(1)(A). By failing to present his state-court habeas
claims to the Wisconsin Court of Appeals or Wisconsin Supreme
Court, Ewing has failed to exhaust his state court remedies.
Because the time for presenting those claims has passed, his
failure to exhaust constitutes a procedural default that
prevents this court from considering the merits of the
claims. Chambers v. McCaughtry, 264 F.3d 732, 737
(7th Cir. 2001) (failure to exhaust available state court
remedies constitutes a procedural default).
rare circumstances, the court may overlook a petitioner's
procedural default, but those circumstances are not present
here. Ewing cannot establish cause for defaulting, because
his belief that he can't get a fair shake in the court of
appeals is nothing more than unwarranted speculation about
the court of appeals judges' ability to fairly judge
matters involving a colleague. Instead of improperly filing
this federal action, Ewing should have filed an appeal along
with a motion for recusal of judges he believed could not be
impartial. Petitioners “cannot simply opt out of the
state review process because [they are] tired of the results
[they are] getting.” Cawley v. DeTella, 71
F.3d 691, 695 (7th Cir. 1995).
Ewing meet the relatively high bar for overcoming procedural
default by showing his revocation proceedings were a
miscarriage of justice because he is actually innocent.
See Schlup v. Delo, 513 U.S. 298 (1995). This court
has previously ruled that the Schlup
actual-innocence doctrine does not apply to a probation
revocation because the habeas petition does not challenge the
actual original crime of which the petitioner had been
convicted. See Sanders v. Paquin, No. 09-CV-472-BBC,
2009 WL 2450362, at *6 (W.D. Wis. Aug. 7, 2009)
(“Petitioner is imprisoned on the underlying counts of
failure to support. The revocation of his probation affected
only the manner in which he served his sentence. An error
that increases the punishment (or in this case, the degree of
punishment) for a non-capital offense does not constitute a
fundamental miscarriage of justice.”). Even if
Schlup did apply, Ewing's argument for actual
innocence is that the victim recanted her original story that
Ewing hit her. But the victim already backed off her
original story at the revocation hearing, and the
administrative law judge found that testimony incredible
compared to her original version. See Dkt. 1-6. A
third account from the victim is simply not the type of
striking “newly discovered evidence” contemplated
in Schlup that would be necessary to definitively
show that he was actually innocent of the offense. So
procedural default dooms his petition.
Rule 11 of the Rules Governing Section 2254 Cases, the court
must issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. To obtain a
certificate of appealability, the applicant must make a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Tennard v.
Dretke, 542 U.S. 274, 282 (2004). This means that
“reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.”
Miller El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotations and citations omitted). Although the
rule allows a court to ask the parties to submit arguments on
whether a certificate should issue, it is not necessary to do
so in this case because the question is not a close one. For
the reasons stated, reasonable jurists would not debate
whether Ewing is entitled to relief under § 2254.
Therefore, no certificate of appealability will issue.
Devon Lytrell Ewing's petition for a writ of habeas
corpus under 28 U.S.C. § 2254 is DENIED.
Ewing is DENIED a certificate of appealability. He may seek a
certificate from the court of ...