Hofmeister v. Hoffman et al

Filing 7

ORDER signed by Judge Rudolph T. Randa on 7/28/2014. By 8/29/2014 Petitioner to file statement notifying Court whether she is withdrawing § 2241 petition, consenting to recharacterization of the § 2241 petition as a § 2254 petition, or filing a § 2254 in this case. Failure to respond by the deadline will result in dismissal of this action. Diane Schwaab and Christine Zuraff DISMISSED from this action. (cc: all counsel, via US mail to Jamie Hofmeister at Robert E Ellsworth Correctional Center)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMIE S. HOFMEISTER,
Petitioner,
v.

Case No. 14-C-813

MICHELLE HOFFMAN,
Superintendent of the Robert E. Ellsworth
Correctional Center,
Respondent.1

DECISION AND ORDER
On July 11, 2014, the pro se Petitioner, Jamie S. Hofmeister (“Hofmeister”), filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 against Respondent
Michelle Hoffman (“Hoffman”), Superintendent of the Robert E. Ellsworth Correctional
Center, in Union Grove, Wisconsin. (ECF No. 1.) Hofmeister is currently serving a state
sentence imposed on February 14, 2002. She maintains that 170 days of sentence credit
has been miscalculated and that, if properly credited, she should be released on August 19,
2014. Hofmeister also filed a motion for a temporary restraining order and preliminary
injunction, and a declaration in support thereof. (ECF Nos. 3-4.)
Because Hofmeister is in custody pursuant to a state judgment, her request for
relief is governed by § 2254. See Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000).

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The petition named Michelle Hoffman, Diane Schaab, and Christine Zuraff as respondents. However,
because she is in state custody, the state officer having custody of the petitioner is the proper respondent. See
Rule 2(a), Rules Governing § 2254 Petitions. Diane Schaab and Christine Zuraff are not proper respondents
and, therefore, are dismissed from this action.

Section 2254 and all associated statutory requirements apply no matter what statutory
label the prisoner has given the case. Id. “Roughly 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.
Section 2254 and all associated statutory requirements apply when a state prisoner files
her petition in the district court, no matter what statutory label the prisoner has given the
case. Id.
However, before this Court may recharacterize the § 2241 petition as a § 2254
petition, it must notify Hofmeister that such a recharacterization 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). The Court will afford Hofmeister
an opportunity to withdraw her petition or amend it to contain all § 2254 claims she wants
to assert, in order to avoid a bar on any additional claims as “second or successive.” By
the stated deadline, Hofmeister must file a statement informing the Court whether she is
withdrawing her § 2241 petition, or consenting to the recharacterization of her § 2241
petition as a § 2254 petition, or file a § 2254 petition in this case. The Court will review
Hofmeister’s petition pursuant to Rule 4 of the Rules Governing § 2254 Cases upon the
filing of Hofmeister’s consent or a § 2254 petition.
If Hofmeister does not file a response to this Decision and Order by the stated
deadline, she will be deemed to have withdrawn her petition and the Court will dismiss
this action.

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However, Hofmeister should note that she must exhaust all available state
remedies before a federal court can consider her petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. See Anderson v. Benik, 471 F.3d 811, 814 (7th Cir. 2006).
In addition, the claims presented in a § 2254 petition cannot be procedurally defaulted,
which means the petitioner must have “fully and fairly” presented her federal claims to the
state courts. Id.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
No later than August 29, 2014, Hofmeister must file a statement notifying the
Court whether she is withdrawing her § 2241 petition, or consenting to recharacterization
of the § 2241 petition as a § 2254 petition, or file a § 2254 petition in this case;
If Hofmeister does not file a response to this Decision and Order by August 29,
2014, she will be deemed to have withdrawn her petition and this action will be dismissed
without further other of the Court; and
Diane Schaab and Christine Zuraff are DISMISSED from this action.
Dated at Milwaukee, Wisconsin, this 28th day of July, 2014.

BY THE COURT:

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

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