Doyle v. Thurmer

Filing 7

ORDER signed by Judge Rudolph T Randa on 03/31/2010 denying as moot 2 Motion for Leave to Proceed in forma pauperis. Thurmer MUST file an answer to the petition, by 05/17/2010. (cc: via US Mail to Dantae L Doyle; Warden-Michael Thurmer and AAG Gregory M Weber w/copies as ordered) (Koll, J)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

D O N T A E L. DOYLE, P e titio n e r , v. M I C H A E L THURMER W a r d e n of Waupun Correctional Institution, Respondent. C a s e No. 10-C-235

DECISION AND ORDER

O n March 19, 2010, pro se Petitioner Dontae L. Doyle ("Doyle"), a State of W is c o n sin prisoner incarcerated at the Waupun Correctional Institution ("WCI") in Waupun, W is c o n sin , filed a motion for leave to proceed in forma pauperis on his petition for a writ of h a b e as corpus pursuant to 28 U.S.C. § 2254. However, on March 22, 2010, Doyle paid the $ 5 .0 0 filing fee for his petition. Therefore, Doyle's motion for leave to proceed in forma p a u p e r is is denied as moot. At this stage of the proceedings, the Court's responsibility is to review Doyle's p e titio n pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States D istric t Courts. Rule 4 provides that upon preliminary consideration by the district court ju d g e , "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is n o t entitled to relief in the district court, the judge must dismiss the petition and direct the c le rk to notify the petitioner."

T itle 28 of the United States Code § 2254 provides that "a district court shall e n te rta in an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the C o n s titu tio n or laws or treaties of the United States." Doyle challenges his October 20, 2000, c o n v ic tio n by the Circuit Court for Milwaukee County, Wisconsin, for 12 different criminal c o u n ts arising from armed robberies occurring between August and November 1999. He i n d ic a te s that on November 20, 2000, he was sentenced to 87 years of imprisonment. It is c le a r that Doyle is "in custody" pursuant to the state criminal conviction he now challenges. D o yle lists two grounds for relief. However, Doyle actually presents a single g ro u n d , which liberally construed, asserts that his Fourteenth Amendment right to process is b e i n g violated because he was falsely convicted of crimes that he did not commit. In so c o n te n d in g , Doyle relies on newly discovered evidence which he states indicates that two in d iv id u a ls have admitted their responsibility for those crimes. Thus, Doyle's petition c h a lle n g e s the legality of his custody on the ground that it is in violation of the Constitution o f the United States. Claims are exhausted when they have been presented to the highest state court fo r a ruling on the merits or when state remedies no longer remain available to the petitioner. E n g le v. Isaac, 456 U.S. 107, 125 n.28 (1982). Before a federal court may consider the merits o f a petitioner's claims, the petitioner must give the state's highest court an opportunity to re v ie w each claim where such review is "a normal, simple, and established part of the State's a p p e lla te review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This means that

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in Wisconsin, state prisoners who wish to have their constitutional claims heard in federal c o u rt must first present the operative facts and controlling legal principles of those claims to th e Wisconsin Court of Appeals and then to the Wisconsin Supreme Court. Moore v. C a s p e rs o n , 345 F.3d 474, 486 (7th Cir. 2003). Relying on the October 06, 2009, Wisconsin C o u rt of Appeals's decision in Wisconsin v. Doyle, No. 2008AP003107, attached to Doyle's p e titio n , and information on the Wisconsin Court System website, indicating that Doyle filed a petition for review of that decision with the Wisconsin Supreme Court and that such petition w a s denied on March 16, 2010, the Court concludes that Doyle has exhausted his state re m e d ie s . See http://wscca.wicourts.gov (last visited Mar. 31, 2010). Summary dismissal under Rule 4, Rules Governing Habeas Corpus Cases, is not a p p r o p r ia t e since it does not plainly appear from "the face of the petition" that Doyle is not e n title d to the relief sought by his petition for a writ of habeas corpus. Consequently, Thurmer w ill be called upon to serve and file an answer to Doyle's petition for a writ of habeas corpus. T h e answer must contain the information called for by Rule 5, Rules Governing Section 2254 C a s e s in the United States District Courts. N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: Doyle's motion for leave to proceed in forma pauperis (Docket No. 2) is D E N IE D as moot.

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T h e Clerk of Court MUST serve a copy of Doyle's petition, his supporting brief w ith attachments, and this Decision and Order upon Thurmer and the Attorney General of W is c o n sin . Thurmer MUST file an answer to the petition, by May 17, 2010. Such answer MUST comply with the requirements of Rule 5 of the Rules G o v e r n in g Section 2254 Cases in the United States District Courts. D a te d at Milwaukee, Wisconsin this 31st day of March, 2010. BY THE COURT s / Rudolph T. Randa Hon. Rudolph T. Randa U .S . District Judge

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