Schessler v. Wisconsin Parole Commission et al

Filing 9

ORDER signed by Judge Rudolph T. Randa on 4/22/2014. Defendants Wisconsin Parole Commission, Steve Landerman and Kathleen Nagel DISMISSED from this action. By 5/23/2014 Petitioner MUST FILE statement informing the Court whether he is withdrawing his § 2241 petition or consenting to re-characterization of his § 2241 petition as a § 2254 petition or file a § 2254 petition in this case; failure to respond will result in dismissal of this action. (cc: all counsel, via US mail to Brian Schessler at Racine Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRIAN K. SCHESSLER,
Petitioner,
v.

Case No. 14-C-25

PAUL KEMPER,1
Warden, Racine Correctional Institution,
Respondent.

DECISION AND ORDER
Pro se Petitioner Brian K. Schlessler (“Schlessler”) intends to challenge the
denial of his request for parole by the Wisconsin Parole Commission.

Because

Schlessler previously filed a petition for relief pursuant to 28 U.S.C. 2254 challenging
his state criminal conviction, Schlesser v. Smith, No. 07-C-901 (E.D. Wis.), he filed an
application with the Seventh Circuit Court of Appeals seeking authorization pursuant
to 28 U.S.C. § 2244(b)(3) to file a successive or second petition. The Court of Appeals
responded with an Order denying the application as unnecessary because, although the
type of action he wants to challenge may be the proper subject of a § 2254 petition,
Williams v. Wisconsin, 336 F.3d 576, 579-80 (7th Cir. 2003), he did need that court’s
permission to file his petition because he had not brought a prior petition challenging
the denial of his parole. See Schlessler v. Kemper, No. 14-1033 (7th Cir. Jan. 10,
1

The Court has amended the caption eliminating Respondents Wisconsin Parole Commission, Kathleen Nagel,
and Steve Landerman because they are dismissed from this action. The only proper respondent in an action for
habeas corpus relief is the person who has custody of the petitioner. See Rule 2(a) of the Rules Governing
Section 2254 Cases in the United States District Courts. In this instance Schlessler is in the custody of Paul
Kemper, the Warden of the Racine Correctional Institution.

2014).
On January 10, 2014, Schlessler filed his motion to file his successive petition
in this District. The Clerk of Court considered the document as a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Subsequently, Schlessler filed a motion
for leave to file an amended petition pursuant to §§ 2241 and 2254. The Court granted
his request on January 31, 2014. Schlessler filed a timely petition using this District’s
form for § 2241 petitions, rather than its form for § 2254 petitions. Schlessler’s choice
of forms occasions the following discussion and order.
Section 2241 of Title 28 of the United States Code is the general statute
empowering federal courts, justices, and judges to grant writs of habeas corpus.
Probation is a form of custody, Minnesota v. Murphy, 465 U.S. 420, 430 (1984).
Because Schlessler is in custody pursuant to a state judgment, his request for relief is
governed by § 2254. See Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000); Heck
v. Humphrey, 512 U.S. 477, 481 (1994) (citation omitted) (holding a petition for a
writ of habeas corpus under 28 U.S.C. § 2254 “is the exclusive remedy for a state
prisoner who challenges the fact or duration of his confinement and seeks immediate
or speedier release.”) This rule applies not only to challenges to a conviction or
sentence, but also to challenges to conditions of probation. Williams, 336 F.3d at 57980.
Section 2254 and all associated statutory requirements apply no matter what
statutory label the prisoner has given the case. Walker, 216 F.3d at 633. “Roughly
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speaking, this makes § 2254 the exclusive 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.
However, before this Court may re-characterize the § 2241 petition as a § 2254
petition, it must notify Schlessler that such a re-characterization may bar a later
habeas challenge because 28 U.S.C. § 2244(b) prohibits “second or successive”
§ 2254 petitions. See Castro v. United States, 540 U.S. 375, 385 (2003). Thus, the
Court will afford Schlessler an opportunity to withdraw his petition or amend it to
contain all § 2254 claims he wants to assert, in order to avoid a bar on any additional
claims as “second or successive.”
No later than May 23, 2014, Schlessler must file a statement informing the
Court whether he is withdrawing his § 2241 petition or consenting to the recharacterization of his § 2241 petition as a § 2254 petition, or file a § 2254 petition in
this case. The Clerk of Court will send a copy of the District’s § 2254 petition form
petition with his copy of this Decision and Order. Schlessler is advised that if he does
not respond to this Decision and Order by May 23, 2014, he will be deemed to have
withdrawn his petition and the Court will dismiss this action.

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NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
The Wisconsin Parole Commission, Kathleen Nagel, and Steve Landerman are
DISMISSED from this action;
The Clerk of Court is DIRECTED to include a copy of the District’s § 2254
form with Schlesser’s copy of this Decision and Order;
No later than May 23, 2014, Schlessler MUST FILE a statement informing
the Court whether he is withdrawing his § 2241 petition or consenting to the recharacterization of his § 2241 petition as a § 2254 petition, or file a § 2254 petition in
this case; and,
If Schlessler does not respond to this Order by May 23, 2014, he will be
deemed to have withdrawn his petition and this action will be DISMISSED.
Dated at Milwaukee, Wisconsin, this 22nd day of April, 2014.

BY THE COURT:

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

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