United States District Court, E.D. Wisconsin
ORDER AMENDING CAPTION AND REQUESTING WISCONSIN
DEPARTMENT OF JUSTICE TO INDICATE WHETHER IT WILL ACCEPT
PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE
September 20, 2019, the court issued an order declining to
adopt Judge Duffin's report and recommendation and
screening the petitioner's petition for writ of
habeas corpus under 28 U.S.C. §2254. Dkt. No.
24. Part of that order discussed the court's belief that
the petitioner was incarcerated in Dodge County Correctional
Institution-making the warden of that institution, William
Pollard, the properly named respondent. Id. at 1,
n.1. At the end of its order, the court asked the Department
of Justice to inform the court whether it would accept
service on behalf of the respondent (and, if not, the reason
for not accepting service and the last known address of the
respondent). Id. at 17.
October 9, 2019, the court received a letter from the
Wisconsin Department of Justice, indicating that it would not
accept service on behalf of the respondent. Dkt. No. 27. The
letter indicated that William Pollard was not the proper
respondent because the petitioner was “now” in
the custody of the Oneida County Jail. Id. It stated
that the proper respondent would be Sheriff Grady Hartmann,
who had a last known address of 2000 East Winnebago Street,
Rhinelander, Wisconsin 54501. Id. at 2. The letter
said that the Wisconsin Department of Justice does not accept
service on behalf of a sheriff. Id. The Department
of Justice also attached two exhibits from the Wisconsin
Department of Corrections showing that the petitioner was
incarcerated at the Oneida County Jail. Dkt. Nos. 27-1, 27-2.
month later, the petitioner filed a notice of change of
address indicating that he had been moved to Stanley
Correctional Institution. Dkt. No. 28. The Wisconsin
Department of Corrections' inmate locator indicates that
the petitioner is still housed at Stanley.
appsdoc.wi.gov/lop/hom.do (last accessed December 6, 2019).
2(a) of the Rules Governing §2254 Cases states that
“[i]f the petitioner is currently in custody under a
state court judgment, the petition must name as respondent
the state officer who has custody.” The petitioner
represents that as of early November 2019, he was
incarcerated at Stanley Correctional Institution. The warden
of that facility is Reed Richardson. The court has amended
the caption according.
the proper respondent is no longer a sheriff, the rationale
for the Wisconsin Department of Justice not to accept service
on behalf of the respondent no longer applies. As the court
did in its September 2019 order, the court notes that under
the Memorandum of Understanding entered into between the
Wisconsin Department of Justice and the U.S. District Clerk
of Court for the Eastern District of Wisconsin, the court
will notify the Wisconsin Department of Justice (through the
Criminal Appeals Unit Director and lead secretary) of this
order via Notice of Electronic Filing (NEF). The Department
of Justice will inform the court within twenty-one days from
the date of the NEF whether the Department of Justice will
accept service on behalf of the respondent (and, if not, the
reason for not accepting service and the last known address
of the respondent). The Department of Justice will provide
the pleadings to the respondent on whose behalf the
Department has agreed to accept service of process.
court ORDERS that that within sixty days of
the date of this order, the respondent shall answer or
otherwise respond to the petition, complying with Rule 5 of
the Rules Governing §2254 Cases, and showing cause, if
any, why the writ should not issue.
court ORDERS that the parties must comply
with the following schedule for filing briefs on the merits
of the petitioner's claims:
(1) the petitioner has forty-five days after the respondent
files his answer to file a brief in support of his petition;
(2) the respondent has forty-five days after the petitioner
files his initial brief to file the respondent's brief in
(3) the petitioner has thirty days after the respondent files
his opposition brief to file a reply brief, if the petitioner
chooses to file such a brief.
instead of filing an answer, the respondent files a
dispositive motion, the respondent must include a brief and
other relevant materials in support of the motion. The
petitioner then must file a brief in opposition to that
motion within forty-five days of the date the respondent
files the motion. If the respondent chooses to file a reply
brief, he must do so within thirty days of the date the
petitioner files the opposition brief.
parties must submit their pleadings in time for the court to
receive them by the deadlines stated above.
Civil Local Rule 7(f), briefs in support of or in opposition
to the habeas petition and any dispositive motions
shall not exceed thirty pages and reply briefs may not exceed
fifteen pages, not counting any statements of facts, exhibits