United States District Court, E.D. Wisconsin
ERIC W. POIRIER, Petitioner,
BRIAN FOSTER, Respondent.
ORDER AND RECOMMENDATION REGARDING PETITION FOR A
WRIT OF HABEAS CORPUS
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
Poirier, who is incarcerated pursuant to the judgment of a
Wisconsin Circuit Court, filed a petition for a writ of
habeas corpus. Poirier asks for leave to proceed without
prepaying the $5.00 filing fee. Having reviewed Poirier's
motion, declaration, and trust account statement the court
finds he lacks the resources to pay the filing fee.
Therefore, his motion (ECF No. 2) will be granted.
court must now screen his petition. Rule 4 of the Rules
Governing Section 2254 Cases states:
If it plainly appears from 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.
preliminary matter, the court notes Poirier has not exhausted
his remedies in state court. A petition for review remains
pending in the Wisconsin Supreme Court. Poirier apparently is
not optimistic that the Wisconsin Supreme Court will grant
review. He writes: “The Supreme Court of wisconsin
Denied the Petition For Review on, ____ and this is ripe for
review by the Federal Court. Both the Circuit Court, and
State Court Of Appeals, and the Supreme Court of Wisconsin
have ruled contrary to well established law of the United
States.” (ECF No. 1 at 7.) Poirier left a blank in his
petition to fill in the date of the presumed denial. He
further states, “Petitioner, knows the Wisconsin
Supreme Court is going to deny his writ without costs, and
review is ripe for this Court.” (ECF No. 1 at 20.)
Online records of the Wisconsin Supreme Court indicate that
Poirier's petition for review with the Wisconsin Supreme
Court remains pending. See Appeal Number
2017AP931-CR, available at https://wscca.wicourts.gov/.
Poirier has not yet exhausted his state court remedies, this
court could not grant his petition for a writ of habeas
corpus. See 28 U.S.C. § 2254(b)(1)(A). But that
is a fixable problem. Poirier has a bigger problem with his
habeas petition relates to deductions from his prison trust
account to pay a fine imposed following a 2003 drunk driving
conviction. See Chippewa Cnty Cir. Ct Case No.
2003CT61; (ECF No. 1 at 2.) According to the Wisconsin Court
of Appeals' decision (ECF No. 1-4 at 15-21), as a
consequence of his 2003 drunk driving conviction the court
assessed fines, court costs, and surcharges totaling $1, 184.
(ECF No. 1-4 at 16, ¶ 2.) Fourteen years later the
circuit court entered an order assigning income from
Poirier's prison account in the amount of $1, 184. (ECF
No. 1-4 at 16, ¶ 3); see also Wis. Stat. §
973.05(4)(b). Poirier's habeas petition argues that this
under 28 U.S.C. § 2254 is limited. Habeas relief may be
granted to “a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a).
Poirier is clearly in custody and will be for the next few
decades. But his habeas petition does not contend that he is
custody in violation of the Constitution or laws or treaties
of the United States. See Virsnieks v. Smith, 521
F.3d 707, 721 (7th Cir. 2008) (“The plain language of
the statute therefore commands that courts entertain habeas
petitions ‘only' on the ground that a prisoner is
‘in custody,' and, by linking a court's ability
to entertain a habeas petition to the particular relief
sought, the language of the statute prevents consideration of
Poirier's challenge is to the imposition of a fine, and
specifically the means by which the state courts have been
collecting that fine. But a fine does not constitute custody
for purposes of § 2254. Hanson v. Circuit Court of
First Judicial Circuit, 591 F.2d 404, 407 (7th Cir.
1979); see also Bailey v. Hill, 599 F.3d 976, 979
(9th Cir. 2010) (“We have repeatedly recognized that
the imposition of a fine, by itself, is not sufficient to
meet § 2254's jurisdictional requirements.”)
(citing cases); Erlandson v. Northglenn Mun. Court,
528 F.3d 785, 788 (10th Cir. 2008) (quoting Obado v. New
Jersey, 328 F.3d 716, 718 (3d Cir. 2003) (“[t]he
payment of restitution or a fine, absent more, is not the
sort of ‘significant restraint on liberty'
contemplated in the ‘custody' requirement of the
federal habeas statutes.”).
the court agreed with Poirier and concluded that the
collection of the fine was “contrary to, or involved an
unreasonable application of, clearly established Federal law,
” 28 U.S.C. § 2254(d)(1), it would have no effect
upon his custody. Stated another way, the collection of the
fine does not “significantly restrain [his] liberty,
” see Virsnieks v. Smith, 521 F.3d 707, 718
(7th Cir. 2008) (quoting Jones v. Cunningham, 371
U.S. 236, 243 (1963) (ellipses omitted)). There are not, nor
will there ever be, any custodial consequences to the
imposition or collection of the fine. In fact, Poirier does
not seek any such relief. Rather, the relief he seeks is as
follows: “Petitioner Prays this Court will impose a
fine against the lower Courts for ruling against him, and
return the monies they have already taken making his sentence
more harsh than it was when imposed.” (ECF No. 1 at
the court concludes that it lacks jurisdiction over
Poirier's petition. Therefore, it recommends that his
habeas petition be dismissed pursuant to Rule 4 of the Rules
Governing Section 2254 Cases because “it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court
IT IS THEREFORE ORDERED that Porier's
motion for leave to proceed without prepayment of the filing
fee (ECF No. 2) is granted.
IS THEREFORE RECOMMENDED that Porier's petition
be dismissed for lack of jurisdiction.
IS FURTHER RECOMMENDED that a certificate of
appealability be denied.
attention is directed to 28 U.S.C. § 636(b)(1)(B) and
(C) and Fed.R.Civ.P. 72(b)(2) whereby written objections to
any recommendation herein or part thereof may be filed within
fourteen days of service of this recommendation. Failure to
file a timely ...