United States District Court, E.D. Wisconsin
ORDER OVERRULING OBJECTION (DKT. NO. 9), ADOPTING
JUDGE JONES'S REPORT AND RECOMMENDATION (DKT. NO. 8),
DISMISSING CASE AND DECLINING TO ISSUE CERTIFICATE OF
PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE.
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
Petition (Dkt. No. 1)
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.
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.
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
Report and Recommendation (Dkt. No. 8)
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.
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.
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.