United States District Court, E.D. Wisconsin
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
PAMELA PEPPER United States District Judge
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.
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.
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.
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.
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)
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.
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.
Judge Duffin’s Report and Recommendation (Dkt. No.
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.
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
Petitioner’s Objection (Dkt. No. 13); Supplemental
objection (Dkt. No. 16); Second Supplemental Objection (Dkt.
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.
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.
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.