Jackson v. Division of Hearing and Appeals et al

Filing 5

ORDER signed by Judge J P Stadtmueller on 7/12/13: denying 1 Petitioner's petition for a writ of habeas corpus; DISMISSING this action without prejudice; and, denying a certificate of appealability as to petitioner's petition (cc: Petitioner, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHRISTOPHER JACKSON,
Petitioner,
v.

Case No. 13-CV-751-JPS

DIVISION OF HEARING AND APPEALS
and DEPARTMENT OF CORRECTIONS,
Respondents.

ORDER

On July 1, 2013, petitioner Christopher Jackson (“Jackson”) filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After
pleading guilty in Milwaukee County Circuit Court, Jackson was convicted
of misappropriation of identity to obtain money. Jackson was sentenced to
two years and six months imprisonment, and later released. After his release,
Jackson was arrested and charged with possession of marijuana in
Milwaukee County Circuit Court case number 2013-CF-1183. (See Docket #1,
Ex. D). This later arrest also apparently resulted in a revocation of Jackson’s
supervised release term on the misappropriation conviction. (See Docket #1,
Ex. B). Jackson is currently being held on both the revocation and recent
substantive criminal charges. (See Docket #1, Ex. D). He filed this habeas
petition seeking release because Wisconsin has not yet held his revocation
hearing, despite the fact that more than 50 days have passed between
Jackson’s initial detention and final revocation hearing, contrary to Wis. Stat.
§ 302.335(2)(b). At this point, Jackson’s final revocation hearing has not yet
been held, but is scheduled to take place on July 24, 2013. (Docket #1, Ex. B2). Despite Jackson’s predicament, this Court lacks jurisdiction to over his

habeas petition and, therefore, must simultaneously deny it and dismiss the
case.
The Court may entertain habeas petitions for persons “in custody
pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a). Simply put,
Jackson’s custody is not the result of a state judgment. In fact, there has not
yet been a judgment of revocation. Furthermore, Jackson’s custody also
results from his pretrial detention on the newer drug possession charges;
there also is not a judgment yet in that case. Therefore, the Court is entirely
without jurisdiction to hear this habeas petition under 28 U.S.C. § 2254(a).
Furthermore, even if there were a state judgment in place, the Court
still would be required to dismiss this matter under Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts. Rule 4
authorizes a district court to conduct an initial screening of habeas corpus
petitions and to dismiss a petition summarily where “it plainly appears from
the face of the petition…that the petitioner is not entitled to relief.” This rule
provides the district court the power to dismiss both those petitions that do
not state a claim upon which relief may be granted and those petitions that
are factually frivolous. See Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993).
Upon an initial Rule 4 review of habeas petitions, the court will analyze
whether the petitioner has avoided statute of limitations bars, exhausted
available state remedies, avoided procedural default, and set forth cognizable
constitutional or federal law claims.
Here, Jackson has not exhausted his available state remedies. The
district court may not address the merits of the constitutional claims raised
in a federal habeas petition “unless the state courts have had a full and fair
opportunity to review them.” Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991).
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Accordingly, a state prisoner is required to exhaust the remedies available in
state court before a district court will consider the merits of a federal habeas
petition. 28 U.S.C. § 2254(b)(1)(A). A prisoner exhausts his constitutional
claim when he presents it to the highest state court for a ruling on the merits.
Simmons v. Gramley, 915 F.2d 1128, 1132 (7th Cir. 1990). Jackson simply has
not taken any action in the state courts challenging his revocation
confinement. Therefore, he cannot possibly have provided them “a full and
fair opportunity to review” his claims, as is required to meet the exhaustion
requirement. See Farrell, 939 F.2d at 410. Accordingly, dismissal of this matter
is appropriate.
Finally, the Court notes that, even if it were to allow Jackson’s petition
to escape dismissal at this stage, it would be extremely unlikely for Jackson
to obtain relief on the merits of his case. While it is true that he is being held
beyond Wisconsin’s statutorily-suggested time for a final revocation hearing
to be held, that time period is purely discretionary. See, e.g., Johnson v. Hompe,
No. 08-CV-613-LA, 2009 WL 3422828, at *2 (Oct. 22, 2009 E.D. Wis.) (citing
State ex rel. Jones v. Div. Adm'r, State, Div. of Hearing & Appeals, 195 Wis.2d
669, 536 N.W.2d 213 (Ct.App.1995); DaimlerChrysler v. LIRC, 299 Wis.2d 1, 727
N.W.2d 311, 2007 WI 15; Wainwright v. Goode, 464 U.S. 78, 84, 104 S.Ct. 378,
78 L.Ed.2d 187 (1983)). Thus, the fact that he did not receive his hearing
within the applicable time frame is largely irrelevant. The only constitutional
claim he would have is that his revocation hearing was not held in a
reasonable time after he was taken into custody. See, e.g. Morrissey v. Brewer,
408 U.S. 471 (1972); Barker v. Wingo, 407 U.S. 514 (1972). To determine
whether the hearing was held within a reasonable time, the Court would

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need to look to the length of the delay, the reasons therefor, whether Jackson
asserted a right to a prompt hearing, and whether he suffered prejudice as
a result of the delay. See Hanahan v. Luther, 693 F.2d 629, 634 (7th Cir. 1982).
Two of those factors weigh heavily in favor of a finding that the hearing was
held within a reasonable time: given that Jackson’s confinement is not solely
due to the revocation hold, but also is attributable to the pending possession
charge, there is a good reason for the delayed revocation hearing and Jackson
is not suffering prejudice from the delay. For those reasons, even if the Court
were to reach the merits of Jackson’s claim, it would likely be necessary to
deny it at that time.
For all of these reasons, the Court will deny Jackson’s petition and
dismiss this case without prejudice.
Finally, under Rule 11(a) of the Rules Governing Section 2254 Cases,
“the district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), the applicant must make a
“substantial showing of the denial of a constitutional right” by establishing
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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). While Rule 11(a) permits a district court to direct the parties to
submit arguments on whether a certificate of appealability should be issued,
additional arguments are not necessary here. As discussed extensively above,
no reasonable jurist would find it debatable that Jackson’s petition does not
make any showing—let alone a substantial showing—of a violation of a
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constitutional right. As a consequence, the court must deny a certificate of
appealability as to the petitioner’s petition.
Accordingly,
IT IS ORDERED that Christopher Jackson’s petition for a writ of
habeas corpus (Docket #1) be and the same is hereby DENIED, and this
action be and the same is hereby DISMISSED without prejudice; and
IT IS FURTHER ORDERED that a certificate of appealability as to
petitioner’s petition be and the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 12th day of July, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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