United States District Court, E.D. Wisconsin
JULIAN C. HOLT, Petitioner,
PAUL KEMPER, Respondent.
ORDER SCREENING HABEAS PETITION (DKT. NO.1) AND
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
Rule 4 Screening
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.
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
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).
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).
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 ...