United States District Court, E.D. Wisconsin
DEREK J. DEGROOT, Petitioner,
REED RICHARDSON, Respondent.
Stadtmueller, U.S. District Judge.
October 16, 2019, Petitioner filed this petition pursuant to
28 U.S.C. § 2254, asserting that his state court
conviction and sentence were imposed in violation of the
Constitution. (Docket #1). After proceeding to trial in
Waukesha County Circuit Court in late 2017, Petitioner was
convicted of various child sexual abuse and drug-related
felonies. Id. at 2. In January 2018 Petitioner was
sentenced to twenty years' imprisonment, to be followed
by twenty years' supervised release. Id.
Petitioner did not appeal. Id. at 3.
of the Rules Governing § 2254 Cases in the United States
District Courts authorizes a district court to conduct an
initial screening of habeas corpus petitions and to dismiss a
petition summarily where “it plainly appears from the
face of the petition…that the petitioner is not
entitled to relief.” This rule provides the district
court the power to dismiss both those petitions that do not
state a claim upon which relief may be granted and those
petitions that are factually frivolous. See Small v.
Endicott, 998 F.2d 411, 414 (7th Cir. 1993). Upon an
initial Rule 4 review of habeas petitions, the court will
analyze whether the petitioner has avoided statute of
limitations bars, exhausted available state remedies, avoided
procedural default, and set forth cognizable constitutional
or federal law claims.
glaring problem which the instant petition presents, and the
reason it must be dismissed, is a lack of exhaustion of state
remedies. A district court may not address the merits of the
constitutional claims raised in a federal habeas petition
“unless the state courts have had a full and fair
opportunity to review them.” Farrell v. Lane,
939 F.2d 409, 410 (7th Cir. 1991). Accordingly, a state
prisoner is required to exhaust the remedies available in
state court before a district court will consider the merits
of a federal habeas petition. 28 U.S.C. § 2254(b)(1)(A);
Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir.
2001) (if petitioner “either failed to exhaust all
available state remedies or raise all claims before the state
courts, his petition must be denied without considering its
merits.”). A petitioner exhausts his constitutional
claim when he presents it to the highest state court for a
ruling on the merits. Lieberman v. Thomas, 505 F.3d
665, 669 (7th Cir. 2007) (citing Picard v. Connor,
404 U.S. 270, 275 (1971); Perruquet v. Briley, 390
F.3d 505, 513 (7th Cir. 2004)). Once the state's highest
court has had a full and fair opportunity to pass upon the
merits of the claim, a prisoner is not required to present it
again to the state courts. Humphrey v. Cady, 405
U.S. 504, 516 n.18 (1972).
candidly admits that he did not appeal. He did, however, file
a state petition for a writ of habeas corpus asserting the
grounds for relief he now presents. (Docket #1 at 4). That
petition was filed directly with Wisconsin Supreme Court,
which denied it on August 27, 2019. (Docket #1-2 at 16-17).
The Wisconsin Supreme Court held that Petitioner had adequate
remedies at law available to him-namely a direct appeal-and
so he could not yet proceed in a habeas action. Id.
makes two arguments related to exhaustion. First, he cites 28
U.S.C. § 2254(b)(1)(B), which allows a state prisoner to
proceed with an unexhausted federal habeas petition if
“(i) there is an absence of available State corrective
process; or (ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.”
Petitioner appears to argue that a direct appeal in state
court would fall under Subsection (ii), based on issues with
his counsel. Petitioner complains that his lawyer does not
want to raise the issues he feels are strongest for his
appeal. Wisconsin law provides, in turn, that if Petitioner
fails to raise an issue on direct appeal, it will be more
difficult to have that issue heard on discretionary review.
See State of Wisconsin v. Starks, 833 N.W.2d 274,
308 (Wis. 2013); State v. Escalona-Naranjo, 517
N.W.2d 157, 162 (Wis. 1994). Petitioner suggests that the
Wisconsin appeal process could be remedied if he were allowed
to file a supplementary brief along with that submitted by
Court rejects Petitioner's position, which is plainly
nothing short of a legally unsupported wholesale attack on
the entire Wisconsin criminal appeal process. While
Wisconsin's courts impose some limitations on the
blending of pro se and represented litigation (as
does this Court), Petitioner has not shown that this renders
the State's corrective process completely ineffective to
protect his rights. In any event, the Court has no evidence
that Petitioner has actually tried to use the
State's corrective process and been left unsatisfied.
Instead, the Court is presented only with Petitioner's
hypothetical gripes about the system.
second argument that the petition he filed with the Wisconsin
Supreme Court was adequate to exhaust his state remedies.
According to Petitioner, the petition gave the Wisconsin
Supreme Court and the Wisconsin Department of Justice notice
of his contentions, and it was dismissed. The Court is
unpersuaded in light of the content of that dismissal. The
Wisconsin Supreme Court rejected the petition for a
procedural reason-that Petitioner still had a direct appeal
available to him-and never reached the merits of
Petitioner's claims. Thus, while he did present his
arguments to the State's highest court, he failed to do
so in accordance with the State's procedures, and
therefore failed to achieve exhaustion. Lieberman,
505 F.3d at 669.
Petitioner has clearly failed to exhaust his state remedies,
and has no valid excuse for this failure, the Court must
dismiss this action without prejudice. The Court stresses the
importance of exhaustion in the scheme of federal habeas
review of state criminal judgments. As noted by the Seventh
[c]omity demands that we give “states the first
opportunity to address and correct alleged violations of a
petitioner's federal rights.” [Lieberman,
505 F.3d at 669]. As the Supreme Court long ago explained,
“in the light of the relations existing, under our
system of government, between the judicial tribunals of the
Union and of the States, and in recognition of the fact that
the public good requires that those relations be not
disturbed by unnecessary conflict between courts equally
bound to guard and protect rights secured by the
[C]onstitution, ” a habeas petitioner must first
exhaust his state court remedies. SKS & Assoc., Inc.
v. Dart, 619 F.3d 674, 679 n. 4 (7th Cir.2010) (quoting
Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 29
L.Ed. 868 (1886)).
Monegain v. Carlton, 576 Fed.Appx. 598, 602 (7th
Cir. 2014). The principle of comity will not allow Petitioner
to short-circuit the State's corrective process because
he believes that it is not an ideal forum to present his
Rule 11(a) of the Rules Governing Section 2255 Cases,
“the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” To obtain a certificate of appealability
under 28 U.S.C. § 2253(c)(2), Petitioner must make a
“substantial showing of the denial of a constitutional
right” by establishing 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 citations
omitted). No reasonable jurists could debate whether
Petitioner has exhausted his state remedies, or whether those
remedies are so inadequate as to fall short of the standard
set forth in 28 U.S.C. § 2254(b)(1)(B). As a
consequence, the Court is compelled to deny a certificate of
appealability as to Petitioner's petition.
IT IS ORDERED that Petitioner's petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
(Docket #1) be and the same is hereby
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED without prejudice for