United States District Court, E.D. Wisconsin
DENNIS J. BROOKSHIRE, Petitioner,
DYLON RADTKE, Respondent.
STADTMUELLER U.S. DISTRICT JUDGE.
September 6, 2019, Petitioner Dennis J. Brookshire
(“Brookshire”) filed a petition pursuant to 28
U.S.C. § 2254, asserting that his state court sentence
was imposed in violation of the Constitution. (Docket #1).
Brookshire pleaded guilty to heroin distribution, and on
March 27, 2017, he was sentenced to twelve years'
imprisonment. Id. at 2. Brookshire filed a combined
appeal/post-conviction motion on September 28, 2017, arguing
that the trial judge erroneously exercised his discretion in
pronouncing the sentence. Id. at 4. The circuit
court denied the motion, and that ruling was upheld in the
Wisconsin Court of Appeals. Id. at 5. The Wisconsin
Supreme Court denied Brookshire's petition for review on
May 14, 2019. Id. at 6.
petition raises two grounds for relief. First, Brookshire
again asserts that the trial judge imposed an excessive
sentence. Id. at 6-7. Second, Brookshire contends
that he received ineffective assistance from his appellate
counsel because counsel failed to raise the sentencing issue.
Id. at 7-8.
October 3, 2019, Magistrate Judge Nancy Joseph, to whom this
case was initially assigned, screened Brookshire's
petition pursuant to Rule 4 of the Rules Governing Section
2254 cases. (Docket #5). Rule 4 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.
Judge Joseph recommended to this Court that it dismiss the
case. (Docket #5 at 2). As to the first ground for relief,
Magistrate Judge Joseph concluded that it presented an issue
of state law that a federal habeas court cannot review.
Id. at 1-2; Dellinger v. Bowen, 301 F.3d
758, 764 (7th Cir. 2002). As to the second ground, Magistrate
Judge Joseph offered two critiques. First, Brookshire did not
exhaust his available state remedies as to the second ground,
in that he has never presented the claim to the state court
at all. Unexhausted claims cannot be heard in a federal
habeas petition. (Docket #5 at 2); Dressler v.
McCaughtry, 238 F.3d 908, 912 (7th Cir. 2001). Second,
even if the claim had been exhausted, it is plainly
meritless. The Wisconsin courts have already ruled against
Brookshire on the underlying claim-that his sentence was
excessive-and so counsel could not have been ineffective for
failing to raise the matter on appeal. (Docket #5 at 2);
Perez v. United States, 286 Fed.Appx. 328, 331 (7th
objected to the recommendation, but his arguments lack merit.
(Docket #6). He does not even attempt to suggest that the
first ground for relief presents a federal claim. Instead, he
cites only Wisconsin court opinions for the proposition that
the sentencing judge erred. Brookshire also fails to
meaningfully defend the ineffective assistance claim. He does
not dispute that it is unexhausted and, more importantly, he
does not dispute that the Wisconsin courts already decided
against his position on the matter.
Court will, therefore, overrule Brookshire's objection to
Magistrate Judge Joseph's recommendation, adopt that
recommendation, and dismiss this action without prejudice.
Under 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), Brookshire 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 the
petition should have been resolved differently. Indeed,
Brookshire's objection reveals that he does not
legitimately contest dismissal on the grounds discussed by
Magistrate Judge Joseph. As a consequence, the Court is
compelled to deny a certificate of appealability as to
IT IS ORDERED that Magistrate Judge Nancy
Joseph's report and recommendation (Docket #5) be and the
same is hereby ADOPTED, and that
Petitioner's objection thereto (Docket #6) be and the
same is hereby OVERRULED;
IS FURTHER 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; and
IS FURTHER ORDERED that a certificate of
appealability be and ...