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Knowlin v. Pollard

United States District Court, E.D. Wisconsin

September 20, 2019

LEE KNOWLIN, Petitioner,
v.
WILLIAM POLLARD[1], Defendant.

          ORDER DENYING AS MOOT PETITIONER’S MOTION TO GRANT RELIEF DESPITE FAILURE TO PURSUE STATE REMEDIES (DKT. NO. 2); DECLINING TO ADOPT JUDGE DUFFIN’S REPORT AND RECOMMENDATION (DKT. NO. 10); DENYING AS MOOT PETITIONER’S MOTION TO EXPEDITE COURT DECISION (DKT. NO. 16); DENYING PETITIONER’S AMENDED MOTION FOR BAIL (DKT. NO. 20); DENYING PETITIONER’S MOTION TO GRANT EXTRAORDINARY WRITS (DKT. NO. 23); SCREENING PETITION AND ORDERING RESPONDENT TO FILE AN ANSWER OR OTHERWISE RESPOND

          HON. PAMELA PEPPER United States District Judge

         I. Introduction

         On February 19, 2019, the petitioner, representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his parole revocation. Dkt. No. 1. With his petition, the petitioner filed a “Motion to Grant Relief Despite Plaintiff’s Failure to Have Pursued a State Remedy Not Available to Him, ” dkt. no. 2, and a motion for leave to proceed without prepaying the filing fee, dkt. no. 3. Less than a week later, the petitioner filed a “Motion for Bail and Temporary Furlough, ” dkt. no. 6, and a “Motion for Stay of Revocation Order and Warrant, ” dkt. no. 7.

         At the end of February, Magistrate Judge William Duffin issued a decision granting the petitioner’s motion for leave to proceed without prepaying the filing fee, denying the petitioner’s motions for bail and for a stay of his revocation order, and recommending that this court dismiss the petition because the petitioner had admitted that he had not exhausted his state court remedies. Dkt. Nos. 9, 10. The petitioner timely filed an objection to Judge Duffin’s recommendation on March 7, 2019. Dkt. No. 13.

         In the months following his objection, the petitioner continued to file documents. He filed (1) a supplemental objection, dkt. no. 15; (2) a motion to expedite court decision on his objection, dkt. no. 16; (3) a supplement, dkt. no. 17; (4) a brief in support of his motion for stay of revocation order and warrant, dkt. no. 18; (5) a second supplemental objection, dkt. no. 19; (6) an amended motion for bail, dkt. no. 20; (7) a memorandum of law with attached exhibit in support of his motion for bail, dkt. no. 21, (8) a supplemental memorandum of law in support of his amended motion for bail, dkt. no. 22; and finally, (9) a motion to grant extraordinary writs, dkt. no. 23.

         Apparently frustrated that this court did not address his pending motions as quickly as he would have liked, the petitioner filed a second petition for writ of habeas corpus. Knowlin v. Sheriff Grady Hartman, No. 19-cv-1046, Dkt. No. 1. He also filed a motion for leave to proceed without prepaying the filing fee for that case. Id. at Dkt. No. 2. The second petition states that the petitioner filed it because this court has “inordinate[ly] delay[ed]” rendering a decision in this case. Id. at Dkt. No. 1, ¶3. The second petition asks for an order requiring an expedited decision in this case. Id. at 4, ¶12. After the clerk’s office assigned case number 19-cv-1046 to this court, the petitioner filed a motion to disqualify judge. Id. at dkt. no. 6. The court will address the motions pending in Case Number 19-cv-1046 by separate order.

         II. Background

         A. Petition (Dkt. No. 1) and Motion to Grant Relief Despite [Petitioner’s] Failure to Have Pursued a State Remedy Not Available to Him (Dkt. No. 2)

         The petitioner asked this federal court to review a February 8, 2019 decision from the administrator of the Division of Hearings and Appeals (DHA) of the Wisconsin Department of Administration regarding the revocation of his parole. Dkt. No. 1 at ¶4. The petitioner alleged that (a) he was denied his Sixth Amendment and due process rights because he was not allowed to confront a witness on her testimonial statements at the revocation hearing; (b) he was denied his due process rights because the Department of Corrections failed to meet its burden of proof regarding all alleged parole violations; (c) he was denied his Confrontation Clause rights when a witness refused to answer defense counsel’s questions at his revocation hearing; and (d) the supervision rule he was alleged to have violated-the violation that formed the basis for his revocation-was vague and overbroad. Dkt. No. 1 at ¶15. For relief, he asked the court to grant habeas corpus “to bring up for review and determination the proceedings in the matter set forth in this petition, ” and that upon granting the writ, the court reverse the “decisions and actions of the respondent” and adjudge them null and void. Id. at ¶16. He asked the court to remand the matter to his parole agent, “for her to exercise discretion whether to commence revocation proceedings” or take other steps, and asked the court to order “the respondent [Todd Delain] and [the administrator of the DHA] to transcribe the electronic record of the hearing in this case, at no cost [to the petitioner].” Id.

         The same day the court received that petition, it received a document entitled “Petitioner’s Notice of Motion and Motion to Grant Relief Despite His Failure to Have Pursued a State Remedy Not Available to Him.” Dkt. No. 2. In this motion, the petitioner stated that “there are no available state judicial remedies available for Mr. Knowlin to challenge revocation of his parole.” Dkt. No. 2 at 1. He stated that in Wisconsin, the proper way to challenge a probation revocation is through a writ of certiorari. Id. at 2. He wrote that he was indigent, could not afford the filing fee for a writ of certiorari and could not get the filing fee waived because under Wis.Stat. §801.02(7)(a), a state circuit court cannot waive a filing fee if the petitioner previously has had three or more actions dismissed for reasons listed in Wis.Stat. §802.05(3)(b) 1-4. Id. The petitioner admitted that he has had three or more claims dismissed for reasons listed under Wis.Stat. §802.05(3)(b)1-4. Id. He predicted that if he tried to file for a writ of certiorari in state court, he would not be allowed to proceed because of his indigency and his history of litigation. Id. at 2-3. The petitioner asked the court to find that he had properly exhausted his claim. Id. In this motion, he stated that his habeas petition asserted that he was actually innocent of his parole violations. Id. at 3.

         B. Judge Duffin’s Report and Recommendation (Dkt. No. 10).

         In his February 27, 2019 order, Judge Duffin granted the petitioner’s motion to waive the $5 filing fee and began screening the petition under Rule 4 of the Rules Governing §2254 cases. Dkt. No. 9 at 2. Judge Duffin acknowledged the petitioner’s motion to proceed despite not having pursued state remedies and noted the petitioner’s belief that the state court would not allow him to proceed. Judge Duffin noted that normally, a petitioner’s failure to exhaust state court remedies precluded a federal court from granting relief. Id. (citing 28 U.S.C. §2554(b)(1)(A)). He observed that the petitioner had not attempted to file for relief in state court. Judge Duffin said that he wasn’t certain whether a state court would permit the petitioner to seek review of the revocation without paying the fees, and that the petitioner would need to seek redress in state court before coming to federal court. Id. For that reason, he recommended that this court deny the motion to proceed without exhausting remedies and dismiss the petition. Id. at 3. Judge Duffin denied the petitioner’s pending motions for temporary release on bail and to stay his revocation proceedings. Id. at 2. He wrote that principles of comity required the petitioner to address those concerns in state court. Id.

         The next day, the court received a notice of change of address from the petitioner. Dkt. No. 12. It was dated February 26, 2019, and asked the court to change his address to show that he had been transferred to the Dodge Correctional Institution. Id.

         C. Petitioner’s Objection (Dkt. No. 13); Supplemental objection (Dkt. No. 16); Second Supplemental Objection (Dkt. No. 19)

         The court received the petitioner’s objection to Judge Duffin’s recommendation on March 7, 2019. Dkt. No. 13. The objection did not identify any errors in Judge Duffin’s reasoning; the petitioner reiterated that the his indigence and previously dismissed lawsuits prevented him from filing in state court. Id. About two months later, the petitioner filed a supplemental objection in which he asked the court to consider Edwardsen v. Petersen, 319 F.Supp. 1338 (E.D. Wis. 1970) in reviewing Judge Duffin’s report and recommendation. Dkt. No. 15. He wrote that Wisconsin requires prisoners to challenge probation revocations through writs of certiorari and that “it is not uncertain about whether the state court will permit him to seek review of the revocation of his parole without prepayment of costs and fees. The law is clear that a prisoner challenging the revocation of his parole must satisfy the PLRA filing requirements.” Id.

         Two weeks after that, the court received a motion asking the court to expedite its review of the objection. Dkt. No. 16. He stressed that his habeas petition alleged that he is innocent of his parole violations. Id.

         Finally, on July 11, 2019, the court received a second supplemental objection to Judge Duffin’s report and recommendation. Dkt. No. 19. This supplement stated that the petitioner had tried to proceed in state court but that the state court judge denied his petition to proceed without prepayment of the filing fee because the petitioner had filed three previous lawsuits dismissed as frivolous. Id. at 2. He attached Circuit Court Judge Eugene A. ...


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