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Grady v. Smith

United States District Court, E.D. Wisconsin

September 25, 2019

HOWARD GRADY, Petitioner,
v.
JUDY SMITH, Respondent.

          ORDER GRANTING PETITIONER’S MOTIONS FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NOS. 3, 10), DENYING WITHOUT PREJUDICE PETITIONER’S MOTIONS FOR DISCOVERY (DKT. NO. 3, 9), DENYING WITHOUT PREJUDICE PETITIONER’S MOTIONS TO APPOINT COUNSEL (DKT. NOS. 3, 11), SCREENING HABEAS PETITION (DKT. NO.1) AND REQUIRING RESPONDENT TO ANSWER OR OTHERWISE RESPOND

          HON. PAMELA PEPPER, United States District Judge.

         On September 17, 2018, the petitioner, an inmate at Oshkosh Correctional Institution who is representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his July 16, 2015 conviction in Milwaukee County Circuit Court for aggravated battery. Dkt. No. 1 at 8-9; State v. Grady, Milwaukee County Case No. 14CF003988 (available electronically at https://wcca.wicourts.gov). He also filed a joint motion, asking the court to (a) allow him to proceed without prepaying the $5.00 filing fee, (b) allow him to conduct discovery, and (c) appoint him a lawyer. Dkt. No. 3. The court’s heavy caseload prevented it from addressing these motions in a timely manner, which caused the petitioner to file renewed motions on May 30, 2019, seeking the same relief. Dkt. Nos. 9, 10, 11. This order screens the petition under Rule 4 of the Rules Governing Section 2254 Cases and resolves the other motions. Because it does not plainly appear from the face of the petition that the petitioner is not entitled to relief, the court will order the respondent to answer or otherwise respond.

         I. Background

         On May 5, 2014, the Ozaukee County District Attorney’s Office charged the petitioner with burglary of a building or dwelling. State v. Grady, Ozaukee County Circuit Court, Case No. 14CF000125 (available electronically at https://wcca.wicourts.gov). The petitioner pleaded no contest and on July 29, 2014, the circuit court imposed a sentence of three years of probation, with the incarceration component of the sentence withheld. Id.

         A little over a month later, the Milwaukee County District Attorney’s Office charged the petitioner with one count of aggravated battery and one count of substantial battery with intent to cause bodily harm. State v. Grady, Milwaukee County Circuit Court, Case No. 14CF003988 (available electronically at https://wcca.wicourts.gov). Both counts included domestic abuse, repeater and use of a dangerous weapon modifiers. Id.

         As a result of the new Milwaukee County charges, the Ozaukee County Circuit Court issued a revocation order and warrant on November 12, 2014. State v. Grady, Ozaukee County Circuit Court, Case No. 14CF000125 (available electronically at https://wcca.wicourts.gov). The Ozaukee County court agreed to adjourn the petitioner’s revocation hearing until his Milwaukee County case concluded. Id. The Milwaukee County case proceeded to a jury trial in April of 2015, and the jury found the petitioner guilty on both battery counts. State v. Grady, Milwaukee County Circuit Court, Case No. 14CF003988 (available electronically at https://wcca.wicourts.gov).

         On May 12, 2015, the petitioner returned to Ozaukee County Circuit Court for his revocation hearing. State v. Grady, Ozaukee County Circuit Court, Case No. 14CF000125 (available electronically at https://wcca.wicourts.gov). After a hearing, the circuit court judge revoked the petitioner’s probation and sentenced him to seven years and six months of initial confinement followed by five years of extended supervision on the burglary of a dwelling charge. Id. The clerk entered judgment the following day. Id. The petitioner has a pending habeas case before this court challenging those revocation proceedings. Grady v. Smtih, Case No. 18-cv-615 (E.D. Wis.) (respondent’s motion to dismiss pending as of August 12, 2019).

         On July 10, 2015, the petitioner returned to Milwaukee County Circuit Court for sentencing on his battery convictions. State v. Grady, Milwaukee County Circuit Court, Case No. 14CF003988 (available electronically at https://wcca.wicourts.gov). Before the sentencing began, the State moved to dismiss Count Two “because of concerns related to” Wis.Stat. §939.66(2m), which prohibits the state from convicting a defendant on both a charged crime of battery and a lesser included crime of battery. Dkt. No. 1-1 at 1; Wis.Stat. §939.66(2m). The circuit judge dismissed Count Two and sentenced the petitioner to twelve years of initial confinement and three years of extended supervision on Count One, consecutive to any other sentence. State v. Grady, Milwaukee County Circuit Court, Case No. 14CF003988 (available electronically at https://wcca.wicourts.gov). The petitioner’s present habeas petition challenges the judgment from his Milwaukee County case.

         On October 14, 2016, the petitioner filed a postconviction motion in Milwaukee County Circuit Court seeking a new trial or, alternatively, a sentence modification. Dkt. No. 1-1 at 1. The petitioner argued that the trial court failed to adequately instruct the jury on lesser included offenses, and that as a result, the jury’s guilty verdict on both counts of battery violated Wis.Stat. §939.66(2m). Id. at 2. He contended that the trial judge failed to make a record of a note from the jury during deliberations. Id. The circuit court denied the motion on December 30, 2016. Id. A year and a half later, the Wisconsin Court of Appeals affirmed the denial of the petitioner’s postconviction motion. State v. Grady, Milwaukee County Circuit Court, Case No. 14CF003988 (available electronically at https://wcca.wicourts.gov). The Wisconsin Supreme Court declined to review the petitioner’s case on August 8, 2018. Id.

         The petitioner filed this petition for habeas corpus on September 17, 2018-five months after he filed his habeas petition in Case No. 18-cv-615. This court has not yet ruled on the petition in Case No. 18-cv-615, so the petitioner currently has two pending habeas petitions. The fact that the petitioner has two petitions does not prevent him from obtaining relief-his petition in Case No. 18-cv-1453 is not barred as a “second or successive petition” under 28 U.S.C. §2244(b). The petitioner’s two habeas petitions challenge separate, consecutive sentences imposed by different state judges at different times for different criminal offenses. Beyer v. Litscher, 306 F.3d 504, 508 (7th Cir. 2002) (reversing a district court’s dismissal under §2244(b) because the petitioner’s petition challenged a different judgment than his first habeas petition).

         Nor does the fact that the petitioner challenges a sentence that he has not begun to serve bar him from seeking relief. The petitioner currently is in custody for a term of seven and a half years for his Ozaukee County burglary conviction. That period of confinement will be followed by a period of twelve years on his Milwaukee County battery conviction. While federal habeas relief is available only to persons “in custody pursuant to the judgment of a State court . . . .” 28 U.S.C. §2254(a), the Supreme Court has held that a prisoner serving consecutive sentences is “in custody” under any one of them for habeas purposes. Peyton v. Rowe, 391 U.S. 54, 67 (1968); see also Sweeney v. United States, 754 F. App’x 440, 442 (7th Cir. 2018). Thus, the petitioner satisfies the custody requirement for habeas relief.

         II. Motions for Leave to Proceed Without Prepayment of the Filing Fee (Dkt. Nos. 3, 10)

         The petitioner filed his first motion to proceed without prepaying the $5.00 filing fee on September 17, 2018. Dkt. No. 3. At that time, he filed a trust account statement from Oshkosh Correctional Institution, which showed that as of August 31, 2018, he had $56.17 in his trust account. Dkt. No. 4. When the petitioner filed his renewed request for leave to proceed without prepayment of his filing fee on May 30, 2019, dkt. no. 11, he did not submit an updated trust account statement. In Case No. 18-cv-615, however, the petitioner filed an updated trust account statement showing an account balance of $3.98 as of April 29, 2019. Case No. 18-cv-615, Dkt. No. 9. In that case, the court found that the petitioner could not afford the filing fee and granted his request to proceed without prepayment. Id., Dkt. No. 10. The court makes the same finding here. The court will grant the petitioner’s requests to proceed without prepayment of the filing fee.

         III. Rule 4 Screening

          A. Standard

         Rule 4 of the Rules Governing §2254 ...


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