United States District Court, E.D. Wisconsin
MARK A. DABNEY, Petitioner,
CHRISTINE SUTER, Respondent.
William C. Griesbach, Chief Judge United States District
March 25, 2019, Petitioner Mark Dabney, who is currently
incarcerated at Gordon Correctional Center, filed this
petition pursuant to 28 U.S.C. § 2254. Dabney alleges
that on September 4, 2015, he pleaded guilty to an
unspecified crime and was sentenced to 60 days. ECF No. 1 at
2. Dabney did not appeal. Id. at 3. However, on
March 14, 2018, Dabney filed a motion for an amended judgment
of conviction, claiming he was entitled to 79 days credit
toward his sentence instead of the one day he was granted.
Id. at 4. In other words, he claims his actual
sentence should have been time served. Again, he did not
appeal. In his § 2254 petition to this court, Dabney
claims he “is entitled to credit for all days spent in
custody 973.155 Wis. State. Stats.” Id. at 6.
give the case prompt initial consideration pursuant to Rule 4
of the Rules Governing § 2254 Cases, which 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.
petition will be dismissed for two reasons: 1) he has not
exhausted his state court remedies, and 2) federal habeas
relief cannot be granted for violations of state law.
Regarding exhaustion, an application for writ of habeas
corpus from a person in state custody shall not be granted
unless it appears that (a) the applicant has exhausted state
remedies, or (b) there is no available state corrective
process or circumstances exist that render such process
ineffective to protect the applicant's rights. 28 U.S.C.
§ 2254(b)(1). To exhaust a claim, the petitioner must
provide the state courts with a full and fair opportunity to
review his claims. O'Sullivan v. Boerckel, 526
U.S. 838, 845 (1999). A specific claim is not considered
exhausted if the petitioner “has the right under the
law of the State to raise, by any available procedure, the
question presented.” 28 U.S.C. § 2254(c). This
requires the petitioner to appeal adverse state court
decisions all the way to the state supreme court when doing
so is part of the ordinary appellate review procedure in that
state. O'Sullivan, 526 U.S. at 847. The doctrine
of exhaustion allows state courts the “initial
opportunity to pass on and correct alleged violations of its
prisoners' federal rights.” Wilwording
v. Swenson, 404 U.S. 249, 250 (1971) (internal
quotation marks omitted). A petition for writ of habeas
corpus should be dismissed if state remedies have not been
exhausted as to any one of the petitioner's federal
claims. Rose v. Lundy, 455 U.S. 509 (1982); Cruz
v. Warden of Dwight Correctional Ctr., 907 F.2d
665, 667 (7th Cir. 1990).
own admission, Dabney has not exhausted his state court
remedies with regard to his claim that he was denied credit
for presentence incarceration. Dabney filed two motions to
amend his sentence credit in his petition, one on March 14,
2018, and the other on May 16, 2018. Dabney's motions
were both denied on June 6, 28, 2018, and to date it appears
he has not filed an appeal. Consequently, Dabney has failed
to exhaust his state court remedies.
addition, Dabney's petition must be dismissed because it
asks the court to review a state court determination made
regarding the application of state law. “[I]t is not
the province of a federal habeas court to reexamine
state-court determinations on state-law questions. In
conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). Dabney's
petition only concerns the application of a state law in
state court. Consequently, his claim does not present a
cognizable basis for granting federal relief, and his
petition will be dismissed.
IT IS ORDERED that this petition is summarily
dismissed pursuant to Rule 4 of the Rules Governing §
disposed of this petition, the Court must decide whether to
issue a certificate of appealability. Rule 11(a), Rules
Governing § 2254 Petitions. The certificate of
appealability may issue only if the applicant makes a
substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253(c)(2). The standard for making a
“substantial showing” is whether
“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.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks omitted) (citing Barefoot v.
Estelle, 463 U.S. 880, 893 & n.4 (1983)). If the
court issues a certificate of appealability it must indicate
on which specific issue or issues the petitioner has
satisfied the “substantial showing” requirement.
28 U.S.C. § 2253(c)(3).
conclude that reasonable jurists could not debate the
outcome, and the petitioner has not shown the denial of any
constitutional right. The certificate of appealability is
therefore DENIED. The Clerk is directed to
enter judgment forthwith.