Dolan v. Hepp

Filing 8

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 6/13/2013. Petitioner failed to comply with orders directing that petition for writ of habeas corpus be filed using correct form. Court will not issue certificate of appealability. (cc: all counsel, via US mail to Nick Dolan at Jackson Correctional Institution)(cb)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN NICK T. DOLAN, Petitioner, -vsCase No. 13-C-266 LIZZIE TEGELS, Warden, Jackson Correctional Institution, Respondent. DECISION AND ORDER The Court has issued two orders directing the petitioner, Nick Dolan, to file his petition for a writ of habeas corpus on the correct form, and Dolan has yet to comply. In the last order, the Court warned Mr. Dolan that if he failed to comply, his petition would be dismissed for want of prosecution. Dolan filed a response which states, in pertinent part, that he “must ordinarily first exhaust his available state remedies which made me pause and hesitate about applying for this application before submitting a 974.06 with the State Circuit Court first. Therefore, please forgive my ignorance to this fact. I respectfully ask that this in no way reflect adversely on your decision in exhausting this matter.” (spelling errors corrected). The Court gathers that Dolan has yet to exhaust his state court remedies, but the bottom line is that Dolan failed to respond to the Court’s simple directive to file his petition on the correct form if he wants to proceed in federal court. Moreover, according to the Court Record Events for his underlying case, State of Wis. v. Dolan, Case No. 08-CF-748 (Wis. Cir. Ct. LaCrosse County), Dolan was sentenced on August 27, 2009 and he failed to file an appeal or, apparently, any sort of motion for postconviction relief. Accordingly, even if properly instituted, an attempt by Dolan to pursue habeas relief would very likely be untimely in any event. 28 U.S.C. § 2244(d). This matter is DISMISSED. The Clerk of Court is directed to enter judgment accordingly. The Court will not issue a certificate of appealability. Rule 11(a), Rules Governing Section 2254 Cases. Dated at Milwaukee, Wisconsin, this 13th day of June, 2013. BY THE COURT: __________________________ HON. RUDOLPH T. RANDA U.S. District Judge -2-

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