United States District Court, E.D. Wisconsin
OVERRULING OBJECTIONS (DKT. NO. 9); ADOPTING JUDGE
JOSEPH'S REPORT AND RECOMMENDATION (DKT. NO. 8); DENYING
MOTION TO APPOINT COUNSEL (DKT. NO. 17); DENYING MOTION TO
EXPEDITE (DKT. NO. 22); DENYING MOTION FOR BAIL BOND (DKT.
NO. 23); AND DISMISSING PETITION WITHOUT PREJUDICE
PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE
February 4, 2019, the petitioner, representing himself, filed
a petition for writ of habeas corpus under 28 U.S.C.
§2254(d)(1). Dkt. No. 1. He paid the $5.00 filing fee.
The clerk's office assigned the case to Magistrate Judge
Nancy Joseph, who attempted to screen the petition; her
February 13, 2019 order observed that the petition
[c]onsists of a thirty-four page, single spaced document.
Although Clark does not specifically cite the conviction he
is challenging, he does state that the criminal complaint was
brought against him in 2001 and the Wisconsin Court of
Appeals affirmed his conviction in 2002. (Docket # 1 at 2-3.)
Clark seemingly alleges multiple grounds for relief,
including, but not limited to, ineffective assistance of
trial and appellate counsel, sufficiency of the evidence, and
various other due process violations. It is unclear from the
face of the petition whether he properly exhausted his state
court remedies as to all or some of these claims by
presenting them not only to the Wisconsin Court of Appeals,
but to the Wisconsin Supreme Court. Also, given the age of
Clark's conviction, it is possible his habeas petition is
untimely under 28 U.S.C. § 2244(d).
No. 4 at 1-2. Given these deficiencies, Judge Joseph ordered
the petitioner to file an amended petition using the
habeas form approved for use in the Eastern District
of Wisconsin. Id. She ordered the petitioner to list
the conviction he was challenging and his grounds for relief
and supporting facts, and to explain whether he had exhausted
his state remedies on each ground for relief. Id. at
2. Judge Joseph gave him two weeks from the date of her
order-until February 28, 2019-to file the amended petition.
Id. She informed the petitioner that if he failed to
file a new petition, she would recommend that this court deny
the petition. Id. With the order, Judge Joseph sent
a copy of the habeas form she instructed the
petitioner to use.
day of the deadline, the petitioner filed a “Notice of
Common Law Objection and Remedy.” Dkt. No. 6. The
filing accused the clerk's office of deceiving the
petitioner into consenting to the jurisdiction of a
magistrate judge. Id. at 1. He accused Judge Joseph
of “bias and prejudice against black incarcerated
persons, ” id. at 2, and indicated his
suspicion that Judge Joseph was personally involved in
confiscating documents related to his original
habeas petition, id. at 5.
Joseph issued an order the same day. Dkt. No. 7. She informed
the petitioner that his “objection” was not
proper because she had not yet issued a recommendation.
Id. at 1. She informed the petitioner that under the
Local Rules for the Eastern District of Wisconsin,
[a]ll persons applying or petitioning for release from
custody under 28 U.S.C. §2241 or 28 U.S.C. §2254,
or moving under 28 U.S.C. §2255 to challenge a sentence
imposed by this Court must file their application, petition,
or motion with the Clerk of Court using forms available from
the Court. The Clerk of Court will provide the forms and
directions for their preparation without charge.
Id. at 1 (citing Civil L.R. 9(a) (E.D. Wis.)). Judge
Joseph explained that the petitioner should use the provided
form because that form would allow her to identify the
challenged conviction, the claims asserted and the procedural
history of the case. Id. She gave the petitioner
another opportunity to file an amended habeas
petition, this time requiring the petitioner to file by March
14, 2019. Id. She again informed the petitioner that
if he did not file an amended petition, she would recommend
dismissal. Along with her February 28, 2019 order, Judge
Joseph sent the petitioner another copy of the
habeas form she instructed him to use.
court did not receive an amended petition by March 14, 2019.
Four days later, Judge Joseph issued a report recommending
that this court dismiss the case. Dkt. No. 8. Judge Joseph
recounted that she had issued two orders instructing the
petitioner to file his amended petition on the proper form.
Id. at 1. She observed that she had warned the
petitioner that she may recommend dismissal if he failed to
follow her orders. Id. Because the petitioner had
failed to file an amended petition on the proper form, Judge
Joseph recommended dismissing the case without prejudice
under Civil L.R. 41(c). The clerk's office assigned the
case to this court for final resolution.
ten days, the petitioner filed “objections” to
Judge Joseph's report and recommendation. Dkt. No. 9. His
objections stated that he never had consented to proceed in
front of a magistrate judge. Id. at 1. He objected
to Judge Joseph's report and recommendation because of
her “being personally bias and prejudice against black
incarcerated persons, and cannot impartiality [sic] determine
their civil actions.” Id. at 2. He alleged
that Judge Joseph intentionally failed to comply with Rule 4
of the Rules Governing §2254 Cases despite her
acknowledgement that he had stated multiple grounds for
relief. Id. He argued that Judge Joseph's
statement “Clark seemingly alleges multiple grounds for
relief” was a concession that his petition should
survive Rule 4 screening. Id. He stated that he had
been “generally influence[d] by prison rumors”
because he suffers from paranoia which causes him to believe
that rumors are true, “especially relates to white
folks.” Id. He stated that he'd been
influenced by prison rumors “that magistrate Nancy
Joseph is bias towards black litigants, and if she does not
receive some sort of gift[, ] [s]he will rule against black
litigants as she done here, in favor of the State or if some
other [party] bribe her.” Id. He argued that
Judge Joseph's recusal was required under 28 U.S.C.
§455(a). Id. at 3.
same day the court received his objections, the court
received from the petitioner a notice of interlocutory
appeal, dkt. no. 10, and a motion for leave to appeal without
prepayment of the filing fee, dkt. no. 12. A month later, the
Seventh Circuit dismissed the interlocutory appeal because
the petitioner had moved to voluntary dismiss it. Dkt. No.
21, 2019, the court received from the petitioner a motion to
appoint counsel, dkt. no. 17, together with a brief in
support of the motion, dkt. no. 18. That same day, the court
received a letter from the petitioner, asking the court about
the status of his petition. Dkt. No. 19. The petitioner has
sent the court additional letters inquiring about the status
of his case and has filed a motion to expedite the
court's consideration of his case (dkt. no. 22). Finally,
the petitioner has filed a “motion for bail bond”