Sean Kendrick v. Wisconsin Department of Correc, et al
Filing
Filed Nonprecedential Disposition PER CURIAM. The judgment is AFFIRMED and Kendrick's implied request for authorization to file a second or successive habeas petition is DENIED. Diane P. Wood, Chief Judge; Richard D. Cudahy, Circuit Judge and Michael S. Kanne, Circuit Judge. [6651525-1] [6651525] [14-3301]
Case: 14-3301
Document: 17
Filed: 03/30/2015
Pages: 4
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 30, 2015*
Decided March 30, 2015
Before
DIANE P. WOOD, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 14‐3301
SEAN KENDRICK,
Plaintiff‐Appellant,
v.
GARY HAMBLIN, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
Nos. 14‐cv‐368‐JPS & 14‐cv‐369‐JPS
J.P. Stadtmueller,
Judge.
O R D E R
Sean Kendrick has sued prison officials under 42 U.S.C. § 1983 asserting that, in
violation of due process and the Eighth Amendment, they incarcerated him for 17
months beyond what he calls his mandatory release date. He seeks money damages and,
since he is now on parole, an early end to his parole. The district court granted the
defendants’ motion to dismiss for failure to state a claim because Kendrick’s release date
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
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was not mandatory. Because Kendrick was not deprived of a protectable liberty interest,
no constitutional violation occurred, so we affirm the judgment.
Kendrick was convicted in 1998 of a “serious felony” in Wisconsin and sentenced
to 20 years’ imprisonment. See WIS. STAT. § 961.41(1m)(cm)5. (1997); 302.11(1g)(a)1.
(1998). The applicable law provides that Wisconsin inmates are entitled to mandatory
release on parole after they serve two‐thirds of their sentence, see WIS. STAT. § 302.11(1)
(1998), unless—as is true for Kendrick—the conviction was for a serious felony, in which
case the release date is only presumptive, see id. § 302.11(1g)(am). Before Kendrick had
served two‐thirds of his sentence, parole board members informed him that he would
not be released on parole on his presumptive release date, see id. § 302.11(1g)(b), because
he refused to participate in a voluntary program. Kendrick was released from
confinement 17 months after his presumptive release date, and he remains on parole.
In an earlier federal case, filed during the 17 months that Kendrick was
imprisoned beyond his presumptive release date, Kendrick petitioned for a writ of
habeas corpus, see 28 U.S.C. § 2254, asserting that his prolonged confinement was
unconstitutional. See Kendrick v. Hamblin, et al., No. 12‐CV‐625‐JPS (E.D. Wis. 2013). By
the time the district court decided Kendrick’s petition, he had been released from prison
and put on parole, so the court ruled that the petition was moot. The district court added
that, even if Kendrick should have started his parole sooner, he was not entitled to end
his parole earlier. His parole term, the court observed, will last until the end of his full
20‐year sentence (June 2018) or until he is discharged in the discretion of the Department
of Corrections. See WIS. STAT. § 302.11(6) (1998). The district court advised Kendrick,
though, that if he thought the 17‐month delay in releasing him on parole entitled him to
money, his only possible recourse was under § 1983. Kendrick did not appeal that
decision, but he did file this suit under § 1983. The district court dismissed it for failure
to state a claim, concluding that the timing of release on parole was discretionary.
We construe Kendrick’s § 1983 complaint as raising two distinct claims. First he
contends that the defendants must pay damages for incarcerating him 17 months longer
than he thinks was proper. Second Kendrick argues that his parole should be terminated
sooner—presumably by 17 months—to account for the 17 months that he spent in prison
beyond what he considers to be his mandatory release date.
We begin with Kendrick’s argument that he is entitled to damages for the last 17
months that he spent in prison. As a threshold matter, we observe that Heck v. Humphrey,
512 U.S. 477 (1994), might ordinarily bar Kendrick’s § 1983 claim for damages because
the judgment authorizing that confinement has not been invalidated. But because the
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district court ruled in the earlier case that mootness prevents him from seeking to vacate
the judgment, Heck might not apply. See Spencer v. Kenma, 523 U.S. 1, 21 (1998) (Souter, J.,
concurring); Burd v. Sessler, 702 F.3d 429, 435 (7th Cir. 2012); Carr v. O’Leary, 167 F.3d
1124, 1127 (7th Cir. 1999). We need not, however, resolve the matter because the
defendants have not asked us to consider the Heck defense. See Polzin v. Gage, 636 F.3d
834, 837–38 (7th Cir. 2011); Kramer v. Vill. of North Fond du Lac, 384 F.3d 856, 862–63 (7th
Cir. 2004); Carr, 167 F.3d at 1126.
On the merits of Kendrick’s damages claims, he loses. The delay in the onset of
parole for 17 months did not violate due process because he does not have a protected
liberty interest in a parole release date. Parole statutes do not give rise to a protectable
liberty interest when they provide that parole is discretionary. See Bd. of Pardons v. Allen,
482 U.S. 369, 378 (1987); Grennier v. Frank, 453 F.3d 442, 444 (7th Cir. 2006). That is the
case with Wisconsin’s law authorizing presumptive release: it enables the parole
commission to exercise its discretion to deny parole to otherwise eligible prisoners.
See Bd. of Pardons, 482 U.S. at 378; Grennier, 453 F.3d at 444; State v. Stenklyft, 697 N.W.2d
769, 790 (Wis. 2005). Likewise, because Kendrick was not entitled to release after serving
two‐thirds of his sentence, he fails to state a claim that, in violation of the Eighth
Amendment, he was held beyond his term of incarceration. See Armato v. Grounds, 766
F.3d 713, 721 (7th Cir. 2014). Thus, we affirm the district court’s judgment dismissing
Kendrick’s § 1983 claim for damages.
Kendrick’s second claim is procedurally improper in a § 1983 suit. He wants his
parole terminated 17 months early to account for the additional time he spent in prison.
But parole is a form of custody, see Jones v. Cunningham, 371 U.S. 236, 242–43 (1963);
Cochran v. Buss, 381 F.3d 637, 640 (7th Cir. 2004), and any challenge to the duration of
custody must proceed through a petition for a writ of habeas corpus, see Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973) (holding that habeas corpus is exclusive federal
remedy for person in custody challenging duration of custody when result he seeks is
speedier release). The problem for Kendrick is that he already petitioned under § 2254 to
challenge the legality of incarcerating him on his felony conviction for an extra 17
months; now that his custody on the same felony conviction has changed to parole, he
challenges the 17 months again. For Kendrick to proceed, we would have to construe his
argument as an application pursuant to 28 U.S.C. § 2244(b)(3) for authorization to file
another habeas petition advancing his claim, but his argument does not warrant
authorization for two reasons.
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First, Kendrick cannot present in a second or successive petition a claim that
already was presented in a prior petition. See 28 U.S.C. § 2244(b)(1). And Kendrick’s
claim here is the same as in his prior petition: he contends that he was imprisoned 17
months too long. His request for a different remedy—a shorter parole term—or a
different argument about the constitutionality of his confinement is not a new claim
under § 2241(b)(1). See Brannigan v. United States, 249 F.3d 584, 587–88 (7th Cir. 2001)
(stating that “new legal arguments about the same events” are not new claims under
§ 2244(b)(1)); Bennett v. United States, 119 F.3d 470, 471–72 (7th Cir. 1997) (same).
Second, § 2244(b)(2) provides another reason for denying Kendrick’s petition.
Authorization depends on an alleged federal constitutional violation, see 28 U.S.C.
§ 2244(b)(2)(A), and Kendrick has not stated one. Kendrick has no protectable liberty
interest in a parole term that ends before the completion of his 20‐year sentence in June
2018. See WIS. STAT. § 302.11(6) (1998); State ex rel. Ludtke v. Dep’t of Corr., Div. of Prob. &
Parole, 572 N.W.2d 864, 866 (Wis. Ct. App. 1997). Without a protectable liberty interest in
release from parole before June 2018, due process is not violated by 17 months spent on
parole before then.
Accordingly we AFFIRM the judgment and DENY Kendrick’s implied request for
authorization to file a second or successive habeas petition.
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