United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. Peterson District Judge.
Buckner, appearing pro se, has filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. He challenges a
revocation of his extended supervision by the Wisconsin
Department of Corrections on October 3, 2018. Buckner
contends that the revocation was unconstitutional because his
term of extended supervision had expired at the time of
revocation. The petition is before the court for preliminary
review under Rule 4 of the Rules Governing Section 2254
Cases. Under Rule 4, I must dismiss the petition “if it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief.” As
explained below, I will dismiss Buckner’s petition
because he failed to exhaust his state court remedies and the
time to do so has now expired.
prisoner seeking habeas relief from a federal court must
first “exhaust[ ] the remedies available in the courts
of the State.” 28 U.S.C. § 2254(b)(1)(A). This
means that a state prisoner must present his claims through a
complete round of state-court review. 28 U.S.C. §
2254(b)(1)(A); O’Sullivan v, Boerckel, 526
U.S. 838, 848 (1999); Lemons v. O’Sullivan, 54
F.3d 357, 360 (7th Cir. 1995). In Wisconsin, supervision
decisions by the Department of Corrections may be challenged
and reviewed through the Department’s administrative
procedures, and then by a state trial court by means of a
writ of certiorari filed within 45 days of the
Department’s decision. Bartus v. Wisconsin
Dep’t of Health & Soc. Servs., Div. of Corr.,
176 Wis.2d 1063, 1078, 501 N.W.2d 419, 426 (1993); Wis.Stat.
§§ 301.048(3)(d) and 893.735. If the writ of
certiorari is unsuccessful, the petitioner must appeal the
circuit court’s decision to the Wisconsin Court of
Appeals and Wisconsin Supreme Court. Sanders v.
Paquin, 09-cv-472-bbc, 2009 WL 2450362, at *4 (W.D. Wis.
Aug. 7, 2009) (describing state-court review procedures for
challenging probation revocation).
states in his petition that he tried to appeal the revocation
decision, but he did not know how to do it. He also states
that he did not seek review of the October 2018 revocation
decision by any Wisconsin state court. My review of
Wisconsin’s online court records confirms that Buckner
did not file a writ of certiorari or any appeals to the
Wisconsin Court of Appeals or Wisconsin Supreme Court.
Therefore, I assume that Buckner’s statement that he
tried to appeal means that he filed an unsuccessful
administrative appeal of the revocation decision. But because
Buckner never sought review in the state courts, he has not
exhausted his state-court remedies.
45-day deadline for filing a writ of certiorari challenging
the revocation decision expired several months ago. Because
Buckner missed the 45-day deadline, it is now too late for
him to exhaust his state-court remedies. This means that his
claims are procedurally barred under state law. The doctrine
of “procedural default” prohibits federal courts
from reviewing habeas claims if the petitioner’s claims
are procedurally barred under state law. See Perruquet v.
Briley, 390 F.3d 505, 514 (7th Cir. 2004) (petitioner
procedural defaults on claim if “the claim was not
presented to the state courts and it is clear that those
courts would now hold that the claim procedurally
barred”). Because Buckner’s claims are
procedurally barred, this court cannot review his federal
rare circumstances, a federal court may excuse a
petitioner’s procedural default, but those
circumstances are not present here. Buckner would have to
show cause and prejudice for his failure to exhaust his
claims, Edwards v. Carpenter, 529 U.S. 446, 451
(2000), or show that dismissal would result in a fundamental
miscarriage of justice. Schlup v. Delo, 513 U.S.
298, 315 (1995). To meet the “cause” exception to
procedural default, Buckner must show that there was
“some objective factor external to the defense”
that prevented him from pursuing his claim in state court.
Harris v. McAdory, 334 F.3d 665, 668 (7th Cir.
2003). Buckner says he did not seek review in state court
because he did not understand the proper process for doing
so. But “it is well established in this Circuit that
circumstances such as youth, lack of education, and
illiteracy are not external impediments within the context of
excusing procedural default.” Harris v.
McAdory, 334 F.3d 665, 669 (7th Cir. 2003).
Buckner’s ignorance of proper appeal procedures does
not excuse his procedural default.
the miscarriage-of-justice exception, this exception
contemplates criminal proceedings rather than revocation
proceedings. The exception usually requires a showing that it
is more likely than not that a jury could not have convicted
the petitioner in light of new evidence. Schlup, 513
U.S. at 315; Jones v. Calloway, 842 F.3d 454, 461
(7th Cir. 2016). Assuming that the exception could apply to a
revocation proceeding, Buckner has not shown that, in light
of new evidence, it is more likely than not that his
probation would not have been revoked. He says that Wisconsin
should not have revoked his extended supervision because his
extended supervision had expired prior to the revocation. But
he does not say that he has any new evidence that was not
available or presented during the revocation proceedings.
Accordingly, the miscarriage of justice exception does not
excuse Buckner’s procedural default. Bucker’s
petition must be dismissed.
Rule 11 of the Rules Governing Section 2254 Cases, the court
must issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. To obtain a
certificate of appealability, the applicant must make a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Tennard v.
Dretke, 542 U.S. 274, 282 (2004). This means that
“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.”
Miller El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotations and citations omitted). Although the
rule allows a court to ask the parties to submit arguments on
whether a certificate should issue, it is not necessary to do
so in this case because the question is not a close one. It
is clear that Buckner’s claims are barred by the
doctrine of procedural default. Reasonable jurists would not
debate whether Buckner is entitled to relief under §
2254. Therefore, no certificate of appealability will issue.
ORDERED that petitioner Gregory Buckner’s petition for
a writ of habeas corpus under 28 U.S.C. § 2254 is
DISMISSED under the doctrine of procedural default. Buckner
is DENIED a certificate of appealability. He may seek ...