United States District Court, E.D. Wisconsin
MARK A. WEISS, Petitioner,
TIM LUNDQUIST, Respondent.
Stadtmueller U.S. District Judge.
November 20, 2019, Petitioner, currently incarcerated at
Racine Correctional Institution, filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254,
ostensibly to claim that his state court conviction and
sentence were imposed in violation of the Constitution.
(Docket #1). As an initial matter, the Court must screen the
petition under Rule 4 of the Rules Governing Section 2254
Proceedings, which requires the Court to promptly examine the
petition and dismiss it “[i]f it plainly appears from
the motion, any attached exhibits, and the record of prior
proceedings that the petitioner is not entitled to
was charged in Kenosha County Circuit Court with arson,
burglary, and recklessly endangering a person's safety.
State of Wisconsin v. Mark A. Weiss, Kenosha County
Circuit Court No. 2016-CF-1249, available at:
https://wcca.wicourts.gov/. Publicly available state records
reveal that the matter is ongoing and that no conviction has
been obtained or sentenced imposed. Id. Petitioner
candidly admits this fact. (Docket #1 at 2). The instant
Section 2254 petition generally asserts Petitioner's
innocence of the crimes charged. Id. at 6-7.
petition must be dismissed for multiple reasons. Assuming
Petitioner actually intended to file a Section 2254 petition,
the petition fails at the outset, as that statute only
permits a prisoner to challenge “the judgment of a
State court[.]” 28 U.S.C. § 2254(a). Petitioner
acknowledges that no judgment has yet been entered in his
case. Even if Petitioner brought this lawsuit pursuant to the
more appropriate habeas statute, 28 U.S.C. § 2241, it
would still fail. Section 2241 allows pre-trial detainees to
challenge their continued confinement. However, as the
Seventh Circuit explains, Section 2241 petitions offer very
limited avenues for relief:
Federal courts must abstain from interfering with state court
criminal proceedings involving important state interests, as
long as the state court provides an opportunity to raise the
federal claims and no “exceptional circumstances”
exist. Stroman Realty, Inc., v. Martinez, 505 F.3d
658, 662 (7th Cir. 2007). See also [Younger v.
Harris, 401 U.S. 37, 43 (1971)]. Relief for state
pretrial detainees through a federal petition for a writ of
habeas corpus is generally limited to speedy trial and double
jeopardy claims, and only after the petitioner has exhausted
Olsson v. Curran, 328 Fed.Appx. 334, 335 (7th Cir.
2009); Tran v. Bartow, 210 Fed.Appx. 538, 540 (7th
Cir. 2006). Petitioner's claims do not fall within the
limited set which this Court could hear in a Section 2241
petition. Further, Petitioner admits that he failed to
exhaust his state court remedies via appeals and/or
post-conviction motions. See (Docket #1 at 3-6). The
Court must, therefore, dismiss this action without prejudice.
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 this
Court's procedural ruling was correct. 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
failure to exhaust; and
IS FURTHER ORDERED that a certificate of
appealability be and the same is hereby
Clerk of Court is directed to enter judgment accordingly.
In truth, it is not clear whether
Petitioner could demand Section 2241 relief, as his current
confinement stems from convictions in numerous other, prior
criminal cases. The Court continues its discussion ...