United States District Court, E.D. Wisconsin
ORDER OVERRULING OBJECTION (DKT. NO. 5), ADOPTING
JUDGE JOSEPH'S REPORT AND RECOMMENDATION (DKT. NO. 3),
DISMISSING PETITION AND DECLINING TO ISSUE A CERTIFICATE OF
PAMELA PEPPER, CHIEF UNITED STATES DISTRICT JUDGE.
October 4, 2018, the petitioner, representing himself, filed
a petition for writ of habeas corpus under 28 U.S.C.
§2254, challenging his September 2018 conviction in
Milwaukee County Circuit Court. Dkt. No. 1. He has paid the
$5.00 filing fee. The clerk's office assigned the case to
Magistrate Judge Nancy Joseph, who screened the petition on
October 11, 2018. Dkt. No. 3. Judge Joseph recommended that
this court dismiss the petition without prejudice because of
the petitioner's failure to exhaust his state court
remedies. Id. at 1. The petitioner filed an
objection two weeks later, contending that he had properly
exhausted his state court remedies. Dkt. No. 5. This order
overrules the petitioner's objection and adopts Judge
Joseph's recommendation to dismiss the petition without
petition states that on September 26, 2018 the petitioner was
convicted in Milwaukee County Circuit Court of violating a
restraining order, intentionally contacting a victim,
resisting an officer, escape from custody and stalking. Dkt.
No. 1 at 2; see also State of Wisconsin v. Robinson,
Milwaukee County No. 2017CF5309, available at
wcca.wicourts.gov/ (last visited Jan. 9, 2020). At the time
the petitioner filed his petition, his sentencing had not yet
occurred; it was to take place on October 29, 2018.
Id. at 2. The publicly available state court docket
shows that sentencing occurred on February 7, 2019. State
of Wisconsin v. Robinson, Milwaukee County No.
2017CF5309, available at wcca.wicourts.gov/ (last visited
Jan. 9, 2020).
court received this petition on October 4, a little over a
week after a jury found the petitioner guilty and over three
weeks before the petitioner was sentenced. Id. The
petition alleges four grounds for relief. First, the
petitioner argues that no circuit court judge or court
commissioner signed his probable cause determination form to
justify his continued detention. Dkt. No. 1 at 6. His second
ground for relief lists “Wis. Const. Chapter 968.03
Commencement of Criminal Proceedings” and says the
trial judge declined to hear a motion on this issue in
September of 2018. Id. at 7. He does not explain
this ground any further. The petitioner's third ground
states “Wis. Const. Chapter 59.40 Cheif [sic] Clerk
duties” and again expresses the petitioner's belief
that he was improperly detained without probable cause.
Id. at 8. In the petitioner's final ground for
relief, “An Abuse of My Procedural Due Process, ”
he explains that the probable cause determination form was
not properly time-stamped. Id. at 9.
Joseph screened the petition a week after the court received
it. Dkt. No. 2. Her report and recommendation informed the
petitioner that a federal court could not grant a petition
under 28 U.S.C. §2254 unless the petitioner had
exhausted the remedies available to him in state court.
Id. at 1. She observed that “state remedies
are ordinarily not considered exhausted if there are any
currently available and adequate procedures for the
individual to present his claim” and noted that the
petitioner admitted to not having appealed his conviction.
Id. She remarked that at the time of her order, the
petitioner had not even been sentenced yet. Id.
Accordingly, Judge Joseph recommended that this court should
dismiss the petitioner's petition without prejudice.
objection to Judge Joseph's recommendation, the
petitioner says that he did exhaust his state court
remedies; he explains that he twice raised a motion
challenging the probable cause determination to the trial
court judge and that the judge denied both motions. Dkt. No.
5. With his objection, the petitioner also filed a letter
reiterating his belief that he had exhausted his state court
remedies by raising motions in the trial court. Dkt. No. 6.
In March 2019, the petitioner filed a letter informing the
court that he now resided at Dodge County Correctional
Institution and that the caption for this case should be
updated accordingly. Dkt. No. 10. The only other docket
activity reflects that in February 2019, the petitioner asked
for a status update. Dkt. No. 8. The court's heavy
caseload prevented it from addressing the report and
recommendation and objections until now.
Federal Rules of Civil Procedure apply to habeas
petitions filed under 28 U.S.C. §2254. See Rule
12 of the Rules Governing Section 2254 Cases in the United
States District Courts. Under 28 U.S.C. §636(b)(1) and
Fed.R.Civ.P. 72(b)(3), if a party objects to a magistrate
judge's report and recommendation, the district court
must conduct a de novo review of any portion of the
recommendation to which the party properly objected.
Id. The district court may “accept, reject, or
modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge with
Joseph recommended dismissing the case during her
“screening”-or preliminary review-under Rule 4 of
the Rules Governing §2254 proceedings in the United
States District Courts. That rule 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.
allows a habeas petition to proceed unless it is
clear that the petitioner is not entitled to relief in the
district court. 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). The
court also considers whether the petitioner filed within the
limitations period, exhausted his state court remedies and
avoided procedural default.
relevant here, “[t]he exhaustion doctrine requires a
petitioner to use all available state procedures to pursue
his claim before seeking federal habeas corpus relief.”
Blanck v. Waukesha Cty., 48 F.Supp.2d 859, 860 (E.D.
Wis. 1999); 28 U.S.C. §2254(b)(1)(A). In order to
exhaust a state court remedy, a petitioner must raise his
claims “through one full round of state court review .
. . .” Richardson v. Lemke, 745 F.3d 258, 272
(7th Cir. 2014) (citing Gray v. Hardy, 598 F.3d 324,
330 (7th Cir. 2010)). In other words, it is not enough to
file one (or multiple) motion(s) to the trial court. To
exhaust his remedies, the petitioner must allow the trial
court, the Wisconsin Court of Appeals and the Wisconsin
Supreme Court the opportunity to rule on his claims. See
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (to