Swinson v. Haines

Filing 39

DECISION AND ORDER - Swinsons petitions for relief under 28 U.S.C. § 2254 are DENIED. IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Proceedings For the United States District Courts, the court GRANTS a certificate of appealability. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JESSE HARDY SWINSON, III,
Petitioner,
v.

Case Nos.

TIM HAINES, Warden

14-C-484
14-C-774
14-C-1297

Respondent.

DECISION AND ORDER

Petitioner Jesse H. Swinson is presently serving a sentence in the Wisconsin prison system
for three counts of theft by fraud, contrary to Wis. Stat. § 943.20(1)(d), and one count of
bailjumping in violation of Wis. Stat. § 946.49(1)(b). He has filed a series of petitions for habeas
corpus pursuant to 28 U.S.C. § 2254 challenging the decision denying him release on parole in 2010.
Swinson claims that prison administrators and state courts have interpreted and applied state laws
governing its earned release program in violation of the due process, equal protection, and ex post
facto clauses of the United States Constitution. For the reasons below, the petition will be denied.
BACKGROUND
Swinson’s case is unusual by any standard. The criminal conduct that led to the state
convictions for which he is currently serving state sentences was discovered more than thirty-five
years ago. From December of 1987 until September of 1989, Swinson used his position as the
project manager for a multi-million dollar mill building project for the Kohler Company to defraud
Kohler of $250,000. Essentially, Swinson set up a dummy corporation that billed Kohler for goods

and services that were never performed or were performed by other contractors, and then approved
the dummy invoices for payment. An internal audit uncovered the fraud in 1989.
In 1991, a federal grand jury indicted Swinson on seventeen counts of mail fraud in violation
of 18 U.S.C. § 1341 and the case proceeded to trial in 1993. At the close of the evidence, the trial
court dismissed all but one count because the government had failed to establish that the checks had
been mailed, an essential element for the mail fraud charges. The jury convicted Swinson on the
remaining count, and he was sentenced to thirty months in prison. On appeal, however, the United
States Court of Appeals for the Seventh Circuit held that the evidence was insufficient to establish
that the mail had been used even for the count that went to the jury. The Court reversed the
conviction and remanded the case to the district court with instructions to enter a judgment of
acquittal. United States v. Swinson, 993 F.2d 1299 (7th Cir. 1993).
The State of Wisconsin then instituted a state prosecution of Swinson in the Circuit Court
for Sheboygan County based on the same course of conduct. On June 9, 1994, Swinson was
charged in an information with fifteen counts of theft by fraud. Following another trial, a jury
returned a verdict of guilty on all fifteen counts, and sentencing was set for May 3, 1995. Swinson
failed to appear for sentencing, however, and the State issued a new complaint charging him with
bailjumping and obtained a warrant for his arrest. Four years later, Swinson was returned to court
for sentencing on the theft by fraud counts on which he had gone to trial and the bailjumping charge
on which he had entered a plea of guilty. The court sentenced him to a combined total of twentynine years in prison, eight years each on three of the theft charges, and five years on the bailjumping,
with all sentences to be served consecutively. On the remaining twelve counts of theft, the court
withheld sentence and placed Swinson on probation for a term of ten years consecutive to his prison
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term. After exhausting his state court remedies, Swinson filed a petition for federal habeas corpus
with this court in 2003, which was denied.
The petitions currently before the court do not challenge the constitutionality of Swinson’s
underlying conviction and sentence. It is far too late for that. Instead, Swinson is challenging the
denial of his release on parole under the state’s early release program. More specifically, Swinson’s
claims in this case all involve the interpretation and implementation of Section 302.05 of the
Wisconsin Statutes, which created a substance abuse and rehabilitation program administered by the
Wisconsin Department of Corrections (DOC). The law now includes an Earned Release Program
(“ERP”) for eligible inmates who complete a substance abuse treatment program. Swinson claims
he has been unconstitutionally denied the benefit of this program, though he has never explained
what substances (if any) he was abusing or demonstrated that he ever had a substance abuse problem
that needed treatment.
The Parole Commission denied Swinson discretionary Parole in 2010, finding that he had not
been sufficiently rehabilitated and that he remained a risk to the public.

In particular, the

Commission considered his history of fraud and the severity of his offenses. The Parole Commission
Chair subsequently approved the Commission’s decision. The Program Review Committee (PRC)
later unanimously rejected Swinson’s request to reduce his security classification from medium to
minimum. The Bureau of Offender Classification and Movement (BOCM) rejected Swinson’s appeal
of his attempted reclassification in early 2011. Swinson next filed a petition for writ of certiorari in
Dane County Circuit Court, which denied his petition to review the BOCM decision.
Swinson subsequently appealed to the Wisconsin Court of Appeals, again challenging the
denial of his request to change his prison custody classification. The court summarily affirmed the
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Circuit Court’s order. The court began by noting that many of Swinson’s arguments were
“incoherent, undeveloped, or unsupported by relevant factual and legal citations” as required by the
Wisconsin rules of appellate procedure. State ex rel. Swinson v. Snider, No. 2011AP2856, *2 (Wis.
Ct. App. Feb. 21, 2013), ECF No. 7-3; see WIS. STAT. RULE 809.19(1)(d) and (e). With that
understanding, the court reviewed only Swinson’s arguments that were not so “patently meritless
or so inadequately developed that they do not warrant our attention.” State ex rel. Swinson, No.
2011AP2856, at *2. The court rejected the merits of Swinson’s challenge to the denial of his request
for reclassification because the PRC’s decision was based on appropriate factors and was thus not
arbitrary and capricious.
The parties to this case dispute what documents were filed and what arguments were made
before the Wisconsin Supreme Court. Respondent insists that Swinson only filed a pleading dated
June 23, 2013, which the Wisconsin Supreme Court treated as a non-conforming petition for review.
That document has the title “Notice of and Motion to Amend the Now Standing Petition for Original
Action Habeas Corpus Tendered to Chief Justice Shirley Abrahamson on May 01, 2013. . . .” (ECF
No. 12-7.) That pleading did not contain claims alleging violations of the ex post facto, due process,
or equal protection clauses based on any interpretation and implementation of Wis. Stat. § 302.05.
Swinson, in contrast, repeatedly asserts that he made his constitutional arguments before the
Wisconsin Supreme Court. Though he fails to directly cite to the alleged pleading, Swinson has filed
many other “exhibits” with this Court that appear to have been filed with the Wisconsin Supreme
Court. Though Swinson’s obscure prose is difficult to comprehend, some of these documents
discuss the same ex post facto, due process, and equal protection claims that he raises in the present
case. (ECF No. 28-2.) Filed in late November 2013, one pleading which raises these arguments is
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titled: “Notice and Motion in Support of Petition for an Original Habeas Corpus Pursuant WSA,
§.***782. Et Seq;... RE: The Illegal and Unconstitutional Interpretation and Implementation of the
Earned Release Program (ERP) by WDOC Sub-Agency Employees; . . . .” This document was at
least allegedly filed prior to the March 17, 2014 Wisconsin Supreme Court’s order denying
Swinson’s request for a writ of habeas corpus and all other requests for relief. After the Wisconsin
Supreme Court declined review of Swinson’s case, he timely filed the present petition for relief in
this Court.
Swinson has filed three separate habeas petitions in the Eastern District of Wisconsin. The
Court has allowed Swinson to proceed on his claim that the Respondent’s failure to release him
under the state’s Earned Release Program (“ERP”) violates the ex post facto clause of the
Constitution and denied him equal protection and due process. Each petition was allowed to
proceed on the mistaken belief that each challenged a different decision denying Swinson his parole.
This Court consolidated Case Nos. 14-C-484 and 14-C-1297. Later, District Judge Adelman issued
an order consolidating Case No. 14-C-774 with the instant case. It now appears, however, that each
petition challenges the denial by the Parole Board in 2010 of his early release under Wis. Stat. §
302.05. Since all three petitions challenge the same decision, the latter two will be dismissed as
second or subsequent petitions. See 28 U.S.C. § 2244(b). Any additional arguments presented in
the dismissed petitions will nevertheless be considered.

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ANALYSIS
A. Procedural Default
1. Exhaustion Requirement
Federal review of state criminal convictions is limited to claims that the petitioner’s custody
is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). In
order to obtain federal review of his federal claims, a state prisoner must first exhaust his state court
remedies and provide the state courts a full and fair opportunity to correct any error. 28 U.S.C. §
2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “That means, among other things,
articulating the point in such a way that a judge could grasp both its substance and its foundation in
federal law.” Lockheart v. Hulick, 443 F.3d 927, 929 (7th Cir. 2006). The fair and full presentation
requirement has not been met if the reviewing court must “go outside the four corners of the
document in order to understand the contention's nature and basis.” Id. (citing Baldwin v. Reese,
541 U.S. 27 (2004)). “A mere passing reference to a constitutional issue certainly does not suffice.”
Sturgeon v. Chandler, 552 F.3d 604, 610 (7th Cir. 2009); see Griffin v. Brown, 84 F. App'x 659,
660 (7th Cir. 2003) (“Although we liberally construe filings by pro se litigants, we must still be able
to ascertain the arguments a litigant raises.”) (citing Anderson v. Hardman, 241 F.3d 544, 545 (7th
Cir.2001)).
2. Petitioner’s Claims Before the State Courts
Swinson’s pleadings, briefs, and motions before the Wisconsin state courts (and this Court)
amount to a stew of decontextualized legal theories, irrelevant factual details, jumbled reasoning, and
abstruse word choices. They are difficult to read and nearly impossible to understand. Throughout
his various briefs Swinson raises issues of complex administrative and constitutional law, at times
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challenging foundational aspects of modern American law. But he never fully develops an issue,
diving in and out of legal arguments in a haphazard manner.

The state courts, unable or

(understandably) unwilling to engage with Swinson at this level, simply did not address many of his
claims in their orders. Indeed, Wisconsin state courts never addressed any of the claims that he now
brings before this Court. The exhaustion standard, however, does not depend on whether the state
courts engaged with Petitioner’s arguments. The standard hinges on whether Swinson provided the
state courts a full and fair opportunity to engage his arguments. Respondent has two primary
arguments that Swinson failed to do so.
First, Respondent urges that Swinson has failed in his responsibility of presenting his current
constitutional claims at each level of his state court actions. Respondent notes that the circuit court
made a great effort to construe Swinson’s pleadings and determined Swinson presented five
arguments. The court interpreted Swinson’s briefs to be arguing that: (1) the PRC’s (non-ERP)
decision was an unconstitutional ex post facto determination; (2) the PRC improperly considered his
child support obligations; (3) the PRC improperly considered separate charges; (4) Swinson suffered
race and age discrimination; and (5) the decision to deny Swinson access to the ERP was against the
substantial evidence. None of those arguments are now before this Court. It is not clear to this
Court what other arguments, if any, Swinson raised before the circuit court.
Respondent next notes that any statement on whether Swinson raised due process, ex post
facto, and equal protection arguments before the state court of appeals would just be a guess. The
Wisconsin Court of Appeals found that his appellate arguments were “incoherent, undeveloped, or
unsupported by relevant factual and legal citations.” (ECF No. 12-6.) The only argument the
appeals court specifically ruled on was Swinson’s contention that he should have been reclassified
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from medium to minimum security. The court held that any arguments not addressed “are either so
patently meritless or so inadequately developed that they do not warrant our attention.” According
to Respondent, Swinson’s failings at the court of appeals amounts to procedural default.
Respondent also contends that Swinson did not fairly present his federal constitutional
challenges to the Wisconsin Supreme Court. As discussed above, Respondent alleges that Swinson’s
filing before the supreme court (ECF No. 12-7) never discussed his current constitutional arguments.
Respondent is correct that the document he cites (ECF No. 12-7) does not discuss Swinson’s current
constitutional claims, but that is not the only document Swinson filed with Wisconsin Supreme
Court. For example, Swinson also filed exhibits with this Court that touch upon his constitutional
claims and appear to have been filed with the Wisconsin Supreme Court. (ECF No. 28-2.) The
difficulty is that it appears that Swinson never filed a document he designated a petition for review
with the Wisconsin Supreme Court. Regardless of how Swinson’s filings are denominated, however,
his filings before the Wisconsin Supreme Court are largely incomprehensible.
Second, Respondent argues that Swinson’s claims before the three state courts are distinct
from the ones he now makes before this Court. According to Respondent, Swinson never argued
in state court that the interpretation and application of § 302.05 violated the ex post facto, due
process, or equal protection clauses. Instead, he argued before the state circuit court that he was
the victim of race and age discrimination and that the parole committee improperly considered
unpaid child support in their determination.

His argument likewise focused on the Parole

Commission’s decision to deny him discretionary parole as an ex post facto law, rather than the
interpretation and application of § 302.05 which he now claims operated as an ex post facto law.

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Swinson named a party not responsible for § 302.05 determinations in his challenge before the circuit
court, preventing the circuit court from reaching the merits of his substantial evidence claim.
Both of Respondent’s arguments are correct. Whether Swinson’s arguments in state court
actually included his entitlement to ERP is not clear from the record because his present petition,
which purports to reproduce his state court filings, is filled with rambling arguments strewn with
countless mostly irrelevant citations. In any event, I am satisfied that Wisconsin courts have not had
the sort of “fair opportunity” to review his federal arguments that is required before federal review
is permissible. See Kurzawa, 146 F.3d at 441. The Seventh Circuit has adopted the following
analysis:
If the petitioner's argument to the state court did not: (1) rely on pertinent federal
cases employing constitutional analysis; (2) rely on state cases applying constitutional
analysis to a similar factual situation; (3) assert the claim in terms so particular as to
call to mind a specific constitutional right; or (4) allege a pattern of facts that is well
within the mainstream of constitutional litigation, then this court will not consider the
state courts to have had a fair opportunity to consider the claim. However, the
presence of any one of these factors, particularly factors (1) and (2), does not
automatically avoid a waiver; the court must consider the specific facts of each case.
Id. Here, Swinson failed number (4)—to assert in the state proceedings a claim in terms “so
particular as to call to mind a specific constitutional right[.]” To the extent that he has tried to assert
particular federal rights here in federal court, the record shows he did not adequately do so in state
court.
“[T]he bottom line is that the ‘task of the habeas court in adjudicating any issue of fair
presentment is assessing, in concrete, practical terms, whether the state court was sufficiently alerted
to the federal constitutional nature of the issue to permit it to resolve that issue on a federal basis.’”
Id. at 442 (quoting Verdin v. O’Leary, 972 F.2d 1467, 1476 (7th Cir. 1992)). In fact, the Wisconsin

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Court of Appeals stated the following with respect to Swinson’s state petition: “Any arguments in
[Swinson’s] briefs that we do not address are either so patently meritless or so inadequately
developed that they do not warrant our attention.” State ex rel. Swinson, No. 2011AP2856, at *2.
The court went on to dispose of, in summary fashion, Swinson’s petition on the basis of purely state
law questions. See id. at 3–4. In these circumstances, I conclude that the state court did not have
a fair opportunity to address any federal claims Swinson raised.
3. Cause and Prejudice
A habeas petitioner may be excused from procedurally defaulting if he can prove that he had
cause for not raising his current arguments in state court. Coleman v. Thompson, 501 U.S. 722, 752
(1991), holding modified by Martinez v. Ryan, 132 S. Ct. 1309 (2012); Nutall v. Greer, 764 F.2d
462, 465 (7th Cir. 1985). “[C]ause for a procedural default on appeal ordinarily requires a showing
of some external impediment preventing counsel from constructing or raising the claim.” Murray
v. Carrier, 477 U.S. 478, 492 (1986). Simply having pro se status does not amount to cause to
excuse procedural default. Salberg v. United States, 969 F.2d 379, 383 (7th Cir. 1992); Barksdale
v. Lane, 957 F.2d 379, 385–86 (7th Cir.), cert. denied, 506 U.S. 890 (1992). See McCowin v. Scott,
67 F.3d 100, 102 (5th Cir. 1995); George v. Perrill, 62 F.3d 333, 335 (10th Cir. 1995). Even if
cause is shown, a petitioner must also show prejudice to excuse the default. To show prejudice a
petitioner must show that the claimed constitutional violations “‘worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.’” Perruquet v. Briley,
390 F.3d at 515 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).
Swinson has not established that anything prevented him from presenting his federal
constitutional challenges to the state courts. No “external impediment” existed, and he does not
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appear to argue that there was any. Swinson is additionally unable to show that there has been a
“fundamental miscarriage of justice” where a “constitutional violation probably has caused the
conviction of one innocent of the crime.” McCleskey v. Zant, 499 U.S. 467, 494–95 (1991).
Swinson does not claim to be innocent, only that he was entitled to a participate in a program that
could have lead to his early release from the lawful sentence that was imposed for his crimes.
For all these reasons, I conclude that Petitioner failed to fairly and fully present his current
constitutional claims at any level of state court. 28 U.S.C. § 2254(b)(1). Therefore, Petitioner’s
request for habeas relief must be denied.
B. Constitutional Claims
Even if Swinson had not procedurally defaulted on his claims, his constitutional claims fail
on their merits. As noted above, Swinson bears the burden of proving that his custody is in violation
of the Constitution. 28 U.S.C. § 2254(a); Moffat v. Gilmore, 113 F.3d 698, 702 (7th Cir. 1997).
Swinson’s constitutional claims all relate to Wisconsin's Earned Release Program (ERP)
authorized by Section 302.05 of the Wisconsin Statutes, a program that did not even exist at the time
Swinson was sentenced. The ERP has changed significantly since its commencement in 2003. See,
generally, Brennan, Michael B., THE PENDULUM SWINGS: NO MORE EARLY RELEASE, 84 Wis.
Lawyer 4 (Sept. 2011). Initially, the ERP offered early release for non-violent offenders who
successfully completed a substance abuse treatment program. Lynch v. Hepp, 626 F.Supp.2d 887,
888 (W.D. Wis. 2009). In 2009, the ERP was expanded to allow early release for successful
completion of “rehabilitation programs.” Wis. § 302.05(1) (2010). Indeed, the amended statute
stated that if the Department of Corrections determined that an eligible inmate has successfully
completed a rehabilitation program described in sub. (1), “the earned release review commission shall
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parole the inmate for that sentence under § 304.06 regardless of the time the inmate has served.”
Wis. § 302.05(3)(b) (2010). Effective August 3, 2011, the expansion of the ERP to include
rehabilitation programs in general has been repealed. Wis. Stat. § 302.05(am).
Given these facts, Swinson’s ex post facto claim clearly fails. “The ex post facto prohibition
forbids the Congress and the States to enact any law ‘which imposes a punishment for an act which
was not punishable at the time it was committed; or imposes additional punishment to that then
prescribed.’” Weaver v. Graham, 450 U.S. 24, 28–29 (1981) (quoting Cummings v. Missouri, 4
Wall. 277, 325–326, 18 L.Ed. 356 (1867)). Because the ERP did not exist at the time Swinson
committed his crimes, failing to apply it to him cannot be considered retroactive punishment. The
sentence he received for his crimes has not been increased retroactively. Indeed, Swinson’s entire
argument is that his sentence should be decreased because of subsequent changes in the law from
which he seeks to benefit. Whatever else it may be, a state’s failure to release an inmate earlier than
his lawfully imposed sentence requires is not a violation of the Ex Post Facto Clause.
Petitioner’s due process claim likewise fails because Swinson has failed to establish he had
any liberty interest in release under the ERP. Generally, inmates in Swinson’s position have no
liberty interest in parole until they reach their mandatory release date after serving two-thirds of their
sentences. Felce v. Fiedler, 974 F.2d 1484, 1491–92 (7th Cir. 1992) (citing Wis. Stat. § 302.11(1)).
Any release before then under the ERP would have been conditioned on Swinson accomplishing a
substance abuse or rehabilitation program “for purposes of the earned release program.” Wis. Stat.
302.05(1) (2009-10). Like good-time credits under separate state programs, a liberty interest under
§ 302.05 only arises, if at all, once the program—whether rehabilitative or dealing with substance
abuse—has been completed and release is mandated under the statute. Montgomery v. Anderson,
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262 F.3d 641, 644–45 (7th Cir. 2001) (“Good-time credits are statutory liberty interests once they
have been awarded, just as parole is a form of statutory liberty once the prisoner has been
released.”). Swinson has failed to complete any program for which early release is mandated.
Finally, Swinson’s equal protection argument also fails under his “class of one” theory
because he has not shown that he was “irrationally singled out . . . for discriminatory treatment.”
United States v. Moore, 543 F.3d 891, 896 (7th Cir. 2008). Swinson claims he was treated
differently than those with substance abuse problems who were released under the ERP, but treating
those with substance abuse problems differently would have been completely rational and therefore
not a violation of the equal protection clause. Thus, though Swinson failed to properly exhaust his
state court remedies, even if he had, the result would be the same. He is not entitled to federal
release on any of the claims asserted.
CONCLUSION
Accordingly, and for the reasons set forth above, I conclude that no hearing is necessary, and
I further conclude that Swinson is not entitled to relief under section 2254.
IT IS ORDERED that Swinson’s petitions for relief under 28 U.S.C. § 2254 are DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section
2254 Proceedings For the United States District Courts, the court GRANTS a certificate of
appealability. A certificate of appealability may issue only if the applicant makes a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The standard for making
a “substantial showing” is whether “reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the issues presented
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were adequate to deserve encouragement to proceed further.” Slack v McDaniel, 529 U.S. 473, 484
(internal quotation marks omitted) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).
Here, though I have found that Swinson failed to properly exhaust his state court remedies and
rejected his claims on the merits, I do not conclude that he has failed to make a substantial showing
of a violation of his rights under the due process and equal protection clauses of the United States
Constitution. The fact that, though eligible for parole, Swinson remains in custody after serving
more than fifteen years in prison for a white collar crime that, with the exception of the bail jumping
conviction, resulted in a total federal sentence of thirty months more than thirty years ago could
cause reasonable jurists to debate whether the petition should have been resolved differently.
NOTICE: This order and the judgment to follow are final. A dissatisfied party may appeal this
Court’s decision to the Court of Appeals for the Seventh Circuit by filing in this Court a notice of
appeal within 30 days of the entry of judgment. See Federal Rule of Appellate Procedure 3, 4. This
Court may extend this deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Federal Rule of Appellate
Procedure 4(a)(5)(A). Under certain circumstances, a party may ask this Court to alter or amend
its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment under
Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil Procedure 59(e)
must be filed within 28 days of the entry of judgment. The court cannot extend this deadline. See
Federal Rule of Civil Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b)
must be filed within a reasonable time, generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. See Federal Rule of Civil Procedure 60(b)(2).

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A party is expected to closely review all applicable rules and determine, what, if any, further
action is appropriate in a case.
Dated this 31st

day of December, 2015.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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