Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Clark v. Foster

United States District Court, E.D. Wisconsin

January 14, 2020

JEREMY CLARK, Petitioner,
v.
BRIAN FOSTER, Respondent.

         ORDER 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

          HON PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE

         I. Background

         On 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).

         Dkt. 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.

         On the 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.

         Judge 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.

         The 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.

         Within 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.

         On the 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. 16.

         On May 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” ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.