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Holt v. Kemper

United States District Court, E.D. Wisconsin

October 16, 2019

JULIAN C. HOLT, Petitioner,
v.
PAUL KEMPER, Respondent.

          ORDER SCREENING HABEAS PETITION (DKT. NO.1) AND DISMISSING CASE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         On August 23, 2018, the petitioner, representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his 1994 conviction for first-degree intentional homicide in Kenosha County Circuit Court. Dkt. No. 1. He has paid the $5 filing fee. This order screens the petition under Rule 4 of the Rules Governing Section 2254 Cases. Because the petitioner has not stated grounds for habeas relief, the court will dismiss his petition.

         I. Background

         The petition asserts that on June 9, 1994, a jury convicted the petitioner of first-degree intentional homicide and use of a dangerous weapon. Dkt. No. 1 at 2. Two months later, the circuit judge sentenced the petitioner to a life sentence (presumably on the homicide charge) plus five years (presumably on the weapons possession charge) to run consecutively. Id. The petitioner appealed, arguing that he was prejudiced by inappropriate statements the prosecutor made during closing arguments. Id. at 3. The Wisconsin Court of Appeals affirmed the conviction on March 27, 1996 and the petitioner did not petition the Wisconsin Supreme Court for review. Id.

         Almost twenty years later, on February 17, 2016, the petitioner returned to Kenosha County Circuit Court and filed a state court petition for writ of habeas corpus. Id. at 4. His state court petition argued three grounds for relief: that the creation of Wis.Stat. §973.014(2) “violate[d] ex post facto law[;]”that his forty-year parole eligibility date violated the ex post facto clause; and that the Wisconsin legislature acted unconstitutionally in passing Wis.Stat. §973.014. Id. The circuit court denied that motion on July 12, 2016 and the Wisconsin Court of Appeals affirmed on June 21, 2017. Id. at 4-5. The petitioner asked for review in the Wisconsin Supreme Court, but that court denied his request on October 9, 2017. Dkt. No. 1 at 5-6.

         II. Rule 4 Screening

         A. Standard

         Rule 4 of the Rules Governing §2254 proceedings provides:

If it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion or other response within a fixed time, or to take other action the judge may order.

         A federal court allows a habeas petition to proceed unless it is clear that the petitioner is not entitled to relief. At the screening stage, the court expresses no view as to the merits of any of the petitioner's claims. Rather, the court reviews the petition and exhibits to determine whether the petitioner alleges he is in custody in violation of the “Constitution or laws or treaties of the United States.” 28 U.S.C. §22554(a). If the state court denied the petition on the merits, this court can grant the petition only if the petitioner is in custody as a result of: (1) “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court, or (2) “a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. §2254(d).

         The court also considers whether the petitioner filed within the limitations period, exhausted his state court remedies and avoided procedural default. Generally, a state prisoner must file his habeas petition within one year of the judgment becoming final. 28 U.S.C. §2254(d)(1)(A). In addition, the state prisoner must exhaust the remedies available in the state courts before the district court may consider the merits of his federal petition. 28 U.S.C. §2254(b)(1)(A). If the district court discovers that the petitioner has included an unexhausted claim, the petitioner either must return to state court to exhaust the claim or amend his petition to present only exhausted claims. Rose v. Lundy, 455 U.S. 509, 510 (1982).

         Finally, even if a petitioner has exhausted a claim, the district court may still be barred from considering the claim if the petitioner failed to raise the claim in the state's highest court in a timely fashion or in the manner prescribed by the state's procedural laws. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000).

         B. The Petition

         Under the “Grounds for Relief” section, the petitioner alleges that (1) the Kenosha County Circuit Court improperly denied his state habeas petition; (2) the Kenosha County Circuit Judge unconstitutionally imposed a parole eligibility minimum at forty years which violated the ex post facto clause by increasing the petitioner's punishment; (3) the Wisconsin legislature acted unconstitutionally in ...


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