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Robinson v. Johnson

United States District Court, E.D. Wisconsin

January 13, 2020

JERMEL ROBINSON, Petitioner,
v.
STEVEN R. JOHNSON, [1]Respondent.

          ORDER OVERRULING OBJECTION (DKT. NO. 9), ADOPTING JUDGE JONES'S REPORT AND RECOMMENDATION (DKT. NO. 8), DISMISSING CASE AND DECLINING TO ISSUE CERTIFICATE OF APPEALBILITY

          HON. PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE.

         On March 19, 2018, the petitioner, representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his 2004 conviction in Milwaukee County Circuit Court. Dkt. No. 1. The clerk's office assigned the case to Magistrate Judge David E. Jones. On April 12, 2018, Judge Jones issued a report, recommending that this court dismiss the case. Dkt. No. 8. The petitioner filed a one-page objection on April 30, 2018. Dkt. No. 9. The court will overrule the petitioner's objection, adopt Judge Jones's report and recommendation and dismiss the case.

         I. Background

         A. Petition (Dkt. No. 1)

         The March 19, 2018 petition explains that in 2004, the petitioner pled guilty to two crimes: party to a crime of forgery and party to a crime of burglary. Dkt. No. 1 at 2. He says that the judge imposed a sentence of two years' incarceration followed by five years of extended supervision. Id. He checked the box on the petition indicating that he did not appeal the judgment of conviction and did not seek review by the highest state court. Id. at 3. He also checked the box indicating that he had not filed any other state petitions, applications or other post-conviction motions of any kind. Id. at 4.

         The petition alleged four grounds for habeas relief: (1) that the petitioner has changed his nationality to Moorish-American and therefore the courts of the state of Wisconsin no longer have jurisdiction over him; (2) that someone tampered with his supervised release file; (3) that his probation agent lied in order to revoke his supervised release in 2007; and (4) that his revocation was arbitrary and capricious because as of the date of the petition, he had not received a new probation agent. Id. at 7-9.

         Two weeks after the court received the petition, the petitioner wrote Judge Jones a letter, stating in part that on March 22, 2018, an administrative law judge “ruled that there was no jurisdiction, due to my extended supervision being completed in 2014.” Dkt. No. 6. He stated that his probation agent produced “forged and falsified documentation” which he would present as further evidence in support of grounds two, three and four of his petition. Id.

         B. Report and Recommendation (Dkt. No. 8)

         On April 12, 2018, Judge Jones issued his report, recommending that this court dismiss the petition. Dkt. No. 8. Judge Jones reviewed the petitioner's history in state court and observed that the petitioner was incarcerated at the Milwaukee Secure Detention Facility under a hold placed on him by the Wisconsin Department of Corrections. Id. at 2. Judge Jones reviewed the four grounds alleged in the habeas petition and informed the petitioner that at the Rule 4 stage, he generally checked (1) whether the petitioner had set forth cognizable constitutional or federal law claims; (2) whether the petitioner had exhausted his available state remedies and (3) whether the petition was timely filed. Id. at 2-3.

         Judge Jones concluded that grounds one and three of the petition “[were] not cognizable federal habeas claims.” Id. at 3. He found the petitioner's claim that the state of Wisconsin lacked jurisdiction over him as a Moorish American citizen to be “plainly frivolous.” Id. at 3. He found the petitioner's claim that his rights had been violated eleven years ago did not establish an ongoing constitutional violation. Id. As for grounds two and four, Judge Jones remarked that the petitioner could potentially pursue federal habeas relief for a violation of his federal due process rights. Id. He wrote, however, that the petitioner had not exhausted his available remedies in state court on these claims. Id. He observed that the petitioner “concede[d] that he never appealed his 2004 judgment of conviction” and that the petitioner's administrative action against his revocation hold did not satisfy the exhaustion requirement of 28 U.S.C. §2254. Id. at 3-4 (citing O'Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999)). Finally, Judge Jones remarked that the petition likely was untimely filed, given that the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 imposes a one-year limitation period on state prisoners seeking relief in federal court. Id. at 4 (citing 28 U.S.C. §2244(d)). He observed that the petitioner's judgment of conviction was dated in 2005. Id. He considered whether any of portion §2244(d)(1)(A)-(D) applied, ultimately concluding that

[a]t first glance the recency of the custodial hold evokes § 2244(d)(1)(D). But the factual predicate of such a claim-[the petitioner's discharge from extended supervision]-allegedly happened in 2014. The Petition [sic] therefore is not timely under any of the circumstances contemplated in § 2244(d).

Id. at 4.

         Judge Jones recommended that this court dismiss the petition and decline to issue a certificate of appealability. Id. at 5. He explained that the petitioner had fourteen days to file written objections to the recommendation. Id. at 6.

         C. Objectio ...


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