United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE
Larry J. Brown filed this petition under 28 U.S.C. §
2254, challenging the fact that he has been unable to restore
his “good time” credit. On April 6, 2018, the
court explained that Brown's filings suggested that he
may not have exhausted his state court remedies, and thus
directed him to supplement his petition to show cause as to
why this petition should not be dismissed for his failure to
exhaust his administrative remedies. In response, Brown
asserts that he has properly exhausted. (Dkt. ##11, 14.)
However, since it is apparent that Brown has not fully
exhausted his claim and has not made the requisite showing
that he should be excused from exhausting his claim, the
court is dismissing this petition.
November 11, 1983, Brown was sentenced in Milwaukee County
Circuit Court to 80 years of imprisonment in Case No.
1983K5190. While Brown became eligible for parole on
July 5, 1985, he has never been paroled.
13, 2011, when Brown was incarcerated at Waupun Correctional
Institution (“Waupun”), Warden William Pollard
issued a memorandum that set forth the circumstances in which
prisoners could restore good time. Prisoners were required to
submit a letter and money disbursement request to the records
department for copies of: (1) their disciplinary record, DOC
173; and (2) their conduct reports, to allow review of both.
However, Pollard also noted that offenses committed before
January 2001 would not be considered. While Pollard further
wrote that legal loans could not be used for the copy fee, he
also stated that the fee could be waived under limited
circumstances. Because Brown could not afford the copy fees,
he wrote to Pollard to request a waiver of the fee on
multiple occasions between 2011 and 2012, but Pollard denied
each of Brown's waiver requests, writing that Brown could
resubmit his request if he could “maintain positive
adjustment.” (Dkt. #1-1, at 4-6.)
November 7, 2012, Brown filed an inmate complaint,
WCI-2012-23663, challenging his inability to restore his good
time and in particular complaining that Pollard discriminated
against him during his conduct report hearing process. Brown
also argued that indigent prisoners had a right to try to
restore their good time credit, and that by requiring
prisoners to pay for copies of the materials necessary to
petition to restore that credit, his equal protection and due
process rights were being violated. On November 15, 2012, an
inmate complaint examiner (“ICE”) rejected
WCI-2012-23663. Brown appealed the rejection, and on November
27, 2012, Pollard affirmed it.
November 13, 2014, Brown was transferred from Waupun to the
Wisconsin Secure Program Facility (“WSPF”). At
WSPF, Brown requested his disciplinary records and a
calculation of how much good time he had lost. On April 21,
2015, WSPF's records department supervisor Diane Anderson
provided Brown with a response, in which she provided some of
his requested records. Anderson also calculated that he had
lost one year and 17 days of good time. Before WSPF's
warden could restore his good time, however, Brown was
transferred from WSPF to Columbia Correctional Institution
and June of 2015, Brown again tried to restore his good time
credit, submitting multiple requests to have the copy fees
waived. However, the waiver requests he submitted at Columbia
were also denied. Brown's recent supplement to his
petition shows that he did, in fact, start the process of
exhausting his state court remedies. In 2016, he filed a
petition for a writ of habeas corpus pursuant to Wis.Stat.
§ 782.03 in Columbia County Circuit Court, seeking
reinstatement of his good time credits. While the petition
initially was denied on the ground that the court lacked
authority to grant the request, Brown sought reconsideration,
and on May 4, 2016, the judge denied the petition due to
several defects in Brown's submissions. (See
dkt. #11-7.) On May 2, 2016, Brown submitted a motion
requesting a new judge.
20, 2016, Brown filed a notice of appeal. Brown v.
Dittman, Case No. 2016-AP-1174 (Columbia Cty. filed June
8, 2016). The Wisconsin Court of Appeals, construing
Brown's appeal as a petition for a supervisory writ,
denied Brown the relief he requested on November 2, 2016,
because Brown failed to submit a timely brief in support of
his petition. (See dkt. #14-2.) Brown did not file a
petition for review with the Supreme Court of Wisconsin.
filed his petition for a writ of habeas corpus in this court
on February 6, 2017, challenging his inability to restore his
good time credits. Disciplinary hearings that deprive an
inmate of good-time credit -- and, as a result, increase the
inmate's period of incarceration -- may serve as a basis
for requesting habeas relief. See Waletzki v.
Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994). However,
federal courts may not review a habeas petition unless the
prisoner has fairly presented his claims “throughout at
least one complete round of state-court review, whether on
direct appeal of his conviction or in post-conviction
proceedings.” Richardson v. Lemke, 745 F.3d
258, 268 (7th Cir. 2014); 28 U.S.C. § 2254(b)(1). This
means that he must present his claims to the highest state
court for a ruling on the merits. Lieberman v.
Thomas, 505 F.3d 665, 669 (7th Cir. 2007). This
exhaustion requirement has two components: (1) the
petitioner's claims must be exhausted, meaning that there
is no remaining state court with jurisdiction to hear the
claims; and (2) exhaustion must not be attributable
to the petitioner's failure to comply with the state
court system's procedural rules. Johnson v.
Foster, 786 F.3d 501, 504 (7th Cir. 2015); Perruquet
v. Briley, 390 F.3d 505, 514 (7th Cir. 2004).
respect to good time credits specifically, “Wisconsin
inmates have a judicial remedy - a petition for a common law
writ of certiorari to the Wisconsin state courts.”
McAtee v. Cowan, 250 F.3d 506, 508 (7th Cir. 2001)
(citing Walker v. O'Brien, 216 F.3d 626, 637
(7th Cir. 2000)). Thus, in Wisconsin, to challenge good time
decisions made by the Department of Corrections
(“DOC”), prisoners must go through the DOC's
administrative procedures, and then through a state trial
court by means of a writ of certiorari, followed by the
Wisconsin Court of Appeals and petition to the Wisconsin
Supreme Court. See Roberts v. Jenkins, 329 Fed.Appx.
670, 671 (7th Cir. 2009). Here, Brown failed to appeal the
Wisconsin Court of Appeals' dismissal of his petition for
a supervisory writ to the Wisconsin Supreme Court, so he has
failed to exhaust.
petitioner has procedurally defaulted his claims by failing
to exhaust, federal habeas review is available only if he can
demonstrate “cause for the default and actual prejudice
as a result of the alleged violation of federal law, ”
or that “failure to consider the claims will result in
a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991). “Cause”
for the default means “that some objective
factor” prevented compliance with the state's
procedural rules. Id. at 753.
“Prejudice” means that the alleged violations
“worked to [the petitioner's] actual and
substantial disadvantage, ” which infected his entire
proceeding with “error of constitutional
dimensions.” Perruquet v. Briley, 390 F.3d
505, 515 (7th Cir. 2004) (original emphasis). A fundamental
miscarriage of justice occurs when the petitioner presents
evidence showing that he is “actually innocent”
of the charges against him or the punishment imposed.
See, e.g., Dretke v. Haley, 541 U.S. 386,
393 (2004). Brown has not attempted to explain why he failed
to appeal the Wisconsin Court of Appeals decision. Nor has he
made a substantial showing of a fundamental miscarriage of
justice. Accordingly, the court concludes that Brown's
petition fails on the ground of procedural default.
Brown seeks to appeal this decision, he must first obtain a
certificate of appealability. See 28 U.S.C. §
2253(c) (providing that an appeal may not be taken to the
court of appeals from the final order in a § 2255
proceeding unless a circuit justice or judge issues a
certificate of appealability). A certificate of appealability
may issue only if the petitioner “has made a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § ...