McCloud v. Humphreys

Filing 7

ORDER signed by Judge Rudolph T Randa on 04/19/2012. McCloud's application for writ of habeas corpus is RECHARACTERIZED as a petition pursuant to § 2254; This action is DISMISSED for lack of jurisdiction pursuant to 28 U.S.C.§ 2244(b); dismissing as moot 3 Motion for Leave to Proceed in forma pauperis; the Court DECLINES to issue a certificate of appealability; and the Clerk of Court is DIRECTED to enter judgment accordingly. (cc: all counsel; via US Mail to Mack Steven McCloud) (Koll, J)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MACK STEVEN MCCLOUD,
Petitioner,
Case No. 12-C-0131
v.
ROBERT HUMPHREYS,
Warden of Kettle Moraine
Correctional Institution,
Respondent.

DECISION AND ORDER

The pro se Petitioner, Mack Steven McCloud (“McCloud”), filed a motion to
proceed in forma pauperis in this action and an application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 seeking his release from the custody of Respondent Robert
Humphreys (“Humphreys”), the Warden of the Kettle Moraine Correctional Institution, in
Kettle Moraine, Wisconsin. Section 2241 of Title 28 of the United States Code grants
federal courts the power to certify writs of habeas corpus. A brief procedural history
provides essential background for the instant petition.
McCloud is in state custody following his September 25, 2003, state court
conviction by the Circuit Court for Milwaukee County, Wisconsin, for three counts of
manufacturing and/or delivering less than or equal to five grams of cocaine (counts one
through three) and one count of manufacturing and/or delivering between five and 15 grams
of cocaine (count four). (Ex. 13 (J. Conviction).) On November 6, 2003, the state circuit

court judge sentenced McCloud to three years of prison confinement and three years of
extended supervision consecutive to any other sentence on Count 1; three years of prison
confinement and three years of extended supervision consecutive to Count 1 and to any other
sentence on Count 2; three years of prison confinement and three years of extended
supervision consecutive to Counts 1 and 2 and to any other sentence on Count 3; and five
years of prison confinement and five years of extended supervision consecutive to Counts
1, 2 and 3 and to any other sentence on Count 4. (Id.)
McCloud contends that he is currently being confined on Counts 3 and 4 which
were not supported by the evidence adduced at the preliminary hearing as these counts,
among others, were brought in an amended information. (See Ex. 10.) McCloud maintains
that the failure of his appellate counsel to object to the counts brought in the amended
information, before filing the no-merit report on direct appeal, constitutes ineffective
assistance of counsel. (Pet’r’s Mem. 4-5.)
Previously on November 21, 2007, McCloud filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his September 2003 conviction.
See McCloud v. Jenkins, Case No. 07-C-1050 (E.D. Wis.). In his 2007 petition, McCloud
asserted that his trial, appellate, and postconviction counsel provided ineffective assistance;
he was arrested in violation of his Fourth Amendment and due process rights; and
inadmissible hearsay evidence was admitted at trial.
On December 21, 2007, in a ruling pursuant to Rule 4 of the Rules Governing
§ 2254 Cases, the district court summarily dismissed McCloud’s petition for failure to

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exhaust his state remedies as to some of his claims, including his claim of ineffective
assistance of appellate counsel, and as to the exhausted claims because the state court had
resolved such claims in a fashion consistent with federal law and United States Supreme
Court precedent.1 (App. P. 109-17.) A final judgment was entered that day. (App. P. 118.)
The Seventh Circuit Court of Appeals denied a certificate of appealability on March 25,
2008. (App. P. 119.)
Subsequently, in the Wisconsin Court of Appeals, McCloud filed a petition for
a writ of habeas corpus alleging that he was denied effective assistance of appellate counsel.
The Wisconsin Court of Appeals denied McCloud’s petition on February 22, 2011, because
McCloud had failed to raise his current claims in prior habeas proceedings (App. P. 120-21),
and upon reconsideration (App. P. 122). McCloud presented his petition to the Wisconsin
Supreme Court which denied his petition on December 13, 2011, and thereafter, upon
reconsideration. (See App. unnumbered [page following App. 123] & App. P. 129.)
McCloud filed his current petition on this District’s form for an application for
writ of habeas corpus pursuant to 28 U.S.C. § 2241. Unfortunately for McCloud, the
statutory label on a petition for a writ of habeas corpus is not dispositive because “when a
prisoner begins in the district court, § 2254 and all associated statutory requirements apply
no matter what statutory label the prisoner has given the case.” Walker v. O’Brien, 216 F.3d
626, 633 (7th Cir. 2000). Indeed, “[r]oughly speaking, this makes § 2254 the exclusive

1

The Order did not mention Rhines v. Weber, 544 U.S. 269 (2005), Rose v. Lundy, 455 U.S. 509, 518-19 (1982),
or any cases from that line of decisions.

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vehicle for prisoners in custody pursuant to a state court judgment who wish to challenge
anything affecting that custody, because it makes clear that bringing an action under § 2241
will not permit the prisoner to evade the requirements of § 2254.” Id. Accordingly, because
McCloud is in custody as a result of a state court judgment, his request for relief is governed
by the requirements of § 2254 and McCloud’s instant application for relief pursuant to
§ 2241 is recharacterized as a petition for a writ of habeas corpus pursuant to § 2254.
Parenthetically, the Court notes that, there is no need to give McCloud advance
notice that his application is being recharacterized as a § 2254 petition because the instant
application is not his initial petition challenging his 2003 conviction. Therefore, the
dismissal of the instant habeas corpus petition will not cause any subsequent petition to be
a sucessive petition. Compare, Castro v. United States, 540 U.S. 375, 383 (2003).
As alluded to, when a petitioner seeks to present new claims after the denial
of a previous habeas petition on the merits, such action is substantively a successive habeas
petition and consequently must be handled accordingly. Gonzalez v. Crosby, 545 U.S. 524,
530-32 (2005). McCloud’s original § 2254 petition was dismissed, in part, on the merits of
the claims presented. Therefore, his current petition is a “second or successive habeas corpus
application.” While the procedural posture of this action is unusual, because the merits of
part of McCloud’s 2007 petition were addressed while others were not since they were
simply dismissed for failure to exhaust state remedies, this Court concludes that the mandate
of § 2244(b)(1) that “[a] claim presented in a second . . . habeas corpus application under

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section 2254 that was presented in a prior application shall be dismissed” requires that this
Court dismiss the present petition. See Gonzalez, 545 U.S. at 530.
Consequently, this action is dismissed for lack of jurisdiction. See Burton v.
Stewart, 549 U.S. 147, 157 (2007). As a result, McCloud’s motion for leave to proceed in
forma pauperis is dismissed as moot.
McCloud is advised that this Court lacks jurisdiction to entertain any further
collateral proceedings unless the Court of Appeals first grants permission under § 2244(b)(3).
If McCloud intends to seek permission from the Court of Appeals to file a successive
petition, he should be aware that 7th Cir. R. 22.2 sets forth the requirements for such
petitions. The text of the Rule is appended to this Decision and Order.
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the Court must
issue or deny a certificate of appealability “when it enters a final order adverse to the
applicant.” A certificate of appealability may “only issue if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make
a substantial showing of the denial of a constitutional right, the petitioner must demonstrate
that “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 were ‘adequate
to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). When a district court denies
a habeas petition on procedural grounds without reaching the prisoner’s underlying
constitutional claim, a certificate of appealability “should issue when the prisoner shows, at

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least, that jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. Upon due consideration
of the multiple problems presented by McCloud’s petition, the Court cannot say reasonable
jurists would find it debatable either as to the procedural barriers to relief or on the merits.
Therefore, the Court declines to issue a certificate of appealability.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
McCloud’s application for writ of habeas corpus is RECHARACTERIZED
as a petition pursuant to § 2254;
This action is DISMISSED for lack of jurisdiction pursuant to 28 U.S.C.
§ 2244(b);
McCloud’s motion for leave to proceed in forma pauperis (ECF No. 3) is
DISMISSED as moot;
The Court DECLINES to issue a certificate of appealability; and
The Clerk of Court is DIRECTED to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 19th day of April, 2012.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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Circuit Rule 22.2. Successive Petitions for Collateral Review
(a) A request under 28 U.S.C. §2244(b) or the final paragraph of 28 U.S.C. §2255 for leave
to file a second or successive petition must include the following information and
attachments, in this order:
(1) A disclosure statement, if required by Circuit Rule 26.1.
(2) A short narrative statement of all claims the person wishes to present for decision. This
statement must disclose whether any of these claims has been presented previously to any
state or federal court and, if it was, how each court to which it was presented resolved it. If
the claim has not previously been presented to a federal court, the applicant must state either:
(A) That the claim depends on a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court; or
(B) That the factual predicate for the claim could not have been discovered previously
through the exercise of due diligence and that the facts, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing evidence that
no reasonable fact-finder would have found the applicant guilty of the crime, had there been
no constitutional error.
(3) A short narrative statement explaining how the person proposes to establish the
requirements mentioned above. An applicant who relies on a new rule of constitutional law
must identify the new rule, the case that establishes that rule, and the decision of the Supreme
Court that holds this new rule applicable to cases on collateral review.
(4) Copies of all opinions rendered by any state or federal court previously rendered in the
criminal prosecution, any appeal, and any collateral attack.
(5) Copies of all prior petitions or motions for collateral review.
(b) A copy of the application, together with all attachments, must be served on the attorney
for the appropriate government agency at the same time as the application is filed with the
court. The application must include a certificate stating who was served, by what means, and
when. If the application is made by a prisoner who is not represented by counsel, filing and
service may be made under the terms of Fed. R. App. P. 4(c).
(c) Except in capital cases in which execution is imminent, the attorney for the custodian (in
state cases) or the United States Attorney (in federal cases) may file a response within 14

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days. When an execution is imminent, the court will not wait for a response. A response
must include copies of any petitions or opinions that the applicant omitted from the papers.
(d) The applicant may file a reply memorandum within 14 days of the response, after which
the request will be submitted to a panel of the court for decision.
(e) An applicant’s failure to supply the information and documents required by this rule will
lead the court to dismiss the application, but without prejudice to its renewal in proper form.

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