United States District Court, E.D. Wisconsin
VICTOR ROBINSON and JOHN ALBERT CASTEEL, also known as Tayr Kilaab al Ghashiyah, Petitioners,
BRIAN FOSTER and DANIEL J. GABLER, Respondents.
ORDER DIRECTING RESPONSE
William C. Griesbach, Chief Judge
December 13, 2018, Petitioner John Albert Casteel, who is
incarcerated at Waupun Correctional Institution and also
known as Tayr Kilaab al Ghashiyah, filed a notice of appeal
from this court's December 6, 2018 order denying him
relief under 28 U.S.C. § 2241. Although Casteel's
petition is styled as a § 2241 petition, his petition
was recharacterized as a § 2254 petition for screening
at his request. ECF No. 15 at 2. The court denied his
petition because Casteel is a restricted filer whom the
Seventh Circuit Court of Appeals has sanctioned, see Al
Ghashiyah v. Huibregtse, No. 09-2775, slip op. at 2 (7th
Cir. Oct. 26, 2009), and because his petition raised the same
underlying legal issues that he presented in a now-dismissed
§ 2241-turned-2254 petition before the Western District
of Wisconsin, No. 15-CV-514. The Court of Appeals' 2009
sanction provides that, unless Casteel pays a monetary fine,
which he has not yet done, “any papers he submits
attacking his current criminal judgment shall be
returned.” Al Ghashiyah, No. 09-2775, at 2. On
December 19, 2018, Casteel filed a motion to proceed on
appeal in forma pauperis, which this court denied.
On January 15, 2019, Casteel filed another motion for leave
to appeal in forma pauperis in this court
and in the Court of Appeals.
order dated January 23, 2019, the Court of Appeals granted
Casteel's motion to proceed in forma pauperis on
appeal, vacated this court's judgment dismissing
Casteel's petition, and remanded the case for this court
to resolve the ambiguity of whether Casteel seeks to attack
his conviction, in which case the Court of Appeals' 2009
sanction would bar his petition, or challenge the denial of
his application for parole, making the sanction inapplicable.
The Court of Appeals entered its mandate on February 14,
2019. In light of the Court of Appeals' order, I will now
conduct a review of Casteel's petition, which this court
characterizes as a § 2254 petition, pursuant to Rule 4
of the Rules Governing § 2254 Cases. Rule 4 reads:
If it plainly appears from 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 . . . .
Rules Governing § 2254 Cases. During my initial review
of habeas petitions, I look to see whether the petitioner has
set forth cognizable constitutional or federal law claims and
exhausted available state remedies.
review, Casteel's petition seems to challenge the denial
of an application for parole rather than his underlying
conviction, making the Court of Appeals' 2009 sanction
inapplicable. As the court noted in its original order,
Casteel's petition appears identical to petitions he
previously filed in the Western District of Wisconsin.
See WIWD Nos. 08-CV-413-slc and 15-CV-514-jdp.
Casteel suggested as much in his objections to the magistrate
judge's report and recommendation for dismissal, stating
that “the Western District declined to allow [his]
lawful claims to be heard, ” so it “makes real
sense for the undersigned who failed to find justice
elsewhere to come” to this court. ECF No. 17 at 4. Upon
closer examination, however, it is unclear whether the
instant petition challenges the same or a more recent parole
decision and, thus, the preclusive effect, if any, of
previous cases is likewise unclear. In any event, the court
cannot tell from the face of the petition whether Casteel is
entitled to relief. The respondents are therefore directed to
file an answer to or a motion seeking dismissal of the
petition within sixty days.
IS THEREFORE ORDERED that Casteel's second
motion for leave to appeal in forma pauperis filed
in this court (ECF No. 31) is DENIED as
IS FURTHER ORDERED that the petition is dismissed
with respect to Robinson, but will proceed under § 2254
with respect to Casteel.
IS FURTHER ORDERED that within 60 days of the date
of this order respondents shall either file an appropriate
motion seeking dismissal or answer the petition, complying
with Rule 5 of the Rules Governing § 2254 Cases, and
showing cause, if any, why the writ should not issue.
IS FURTHER ORDERED that unless respondents file a
dispositive motion in lieu of an answer the parties shall
abide by the following schedule regarding the filing of
briefs on the merits of petitioner's claims: (1)
petitioner shall have 45 days following the filing of
respondents' answer within which to file his brief in
support of his petition; (2) respondents shall have 45 days
following the filing of petitioner's initial brief within
which to file a brief in opposition; and (3) petitioner shall
have 30 days following the filing of respondents'
opposition brief within which to file a reply brief, if any.
respondents file a dispositive motion in lieu of an answer,
this briefing schedule will be suspended and the briefing
schedule will instead be as follows: (1) petitioner shall
have 30 days following the filing of respondents'
dispositive motion and supporting initial brief within which
to file a brief in opposition; and (2) respondents shall have
15 days following the filing of petitioner's opposition
brief within which to file a reply brief, if any.
to Civil L.R. 7(f), the following page limitations apply:
briefs in support of or in opposition to the habeas petition
or a dispositive motion filed by respondents must not exceed
thirty pages and reply briefs must not exceed fifteen pages,
not counting any caption, cover page, table of contents,
table of authorities, and/or signature block.
IS FURTHER ORDERED that, pursuant to the Prisoner
E-Filing Program, the petitioner shall submit all
correspondence and case filings to institution staff, who
will scan and email documents to the Court. The Prisoner
E-Filing Program is in effect at Columbia Correctional
Institution, Dodge Correctional Institution, Green Bay
Correctional Institution, Oshkosh Correctional Institution,
Waupun Correctional Institution, and Wisconsin Secure Program
Facility. If the petitioner is no longer incarcerated at a
Prisoner E-Filing Program institution, he will be required to
submit all correspondence and legal material to:
Honorable William C. Griesbach c/o Office of the Clerk United
States District Court Eastern District of Wisconsin 125 S.