Johnson v. Symdon

Filing 4

RULE 4 ORDER signed by Magistrate Judge Nancy Joseph on 8/4/14. Respondent shall file an answer/response within 60 days of the date of this order. See order for additional deadlines. (cc: all counsel, mailed to petitioner)(djd)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

PRIEST JOHNSON,
Petitioner,
v.

Case No. 14-CV-879

DENISE SYMDON,
Respondent.

RULE 4 ORDER

The petitioner, Priest Johnson (“Johnson”), who is currently incarcerated at the Racine
Correctional Institution, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Habeas
Petition, Docket # 1.) Johnson has paid the statutory $5 filing fee and the Court shall now screen the
petition in accordance with Rule 4 of the Rules Governing § 2254 Cases.
Section 2254(a) provides that a district court “shall entertain an application for a writ of
habeas corpus [o]n behalf of a person in custody in violation of the Constitution or laws or treaties
of the United States.” Under Rule 4, the district court must dismiss a petition summarily if “it plainly
appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the
district court.” During the initial review of habeas petitions, the Court generally reviews whether the
petitioner has set forth cognizable constitutional or federal law claims and exhausted available state
remedies. A claim is not considered exhausted if the petitioner “has the right under the law of the
State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). With some
exceptions, a petition for writ of habeas corpus should be dismissed if state remedies have not been

exhausted as to any one of the petitioner’s federal claims. See Rhines v. Weber, 544 U.S. 269, 277-78
(2005); Cruz v. Warden of Dwight Corr. Ctr., 907 F.2d 665, 667 (7th Cir. 1990). The petitioner must
invoke one complete round of the normal appellate process, including seeking discretionary review
before the state supreme court. McAtee v. Cowan, 250 F.3d 506, 508-09 (7th Cir. 2001).
If state court remedies are no longer available because the prisoner failed to comply with the
deadline for seeking state court review or for taking an appeal, those remedies are technically
exhausted; however, exhaustion in this sense does not automatically entitle the habeas petitioner to
litigate his or her claims in federal court. Woodford v. Ngo, 548 U.S. 81, 93 (2006). A habeas petitioner
who has exhausted his state court remedies without properly asserting his federal claim at each level
of state court review has procedurally defaulted that claim. Lewis v. Sternes, 390 F.3d 1019, 1026 (7th
Cir. 2004). A procedural default will bar federal habeas relief unless the petitioner can demonstrate
both cause for and prejudice stemming from that default or he can establish that the denial of relief
will result in a miscarriage of justice. Id.
Although Johnson is currently incarcerated, he is not challenging his underlying conviction
or his revocation proceeding. Rather, he challenges the various restrictions placed on him while on
community supervision. At first blush, it would appear that habeas corpus might not be the proper
route to seek relief. Nevertheless, the Court of Appeals for the Seventh Circuit has stated that, in the
context of probation and parole, “the distinction between the fact of confinement and the conditions
thereof is necessarily blurred.” Drollinger v. Milligan, 552 F.2d 1220, 1225 (7th Cir. 1977). Because a
parolee’s confinement is defined not by his placement in a prison but by various lesser restrictions on
his liberty, a challenge to even one condition of parole is, according to the court of appeals, a
challenge to the parolee’s custody. Williams v. Wisconsin, 336 F.3d 576, 579 (7th Cir. 2003). Johnson

-2-

alleges his conditions of community supervision denied him access to the court and violated his rights
under the First Amendment. Thus, construing the claims in the petition liberally, Johnson sets forth
arguably cognizable constitutional or federal law claims.
Even though Johnson’s claims translate, at least colorably, into constitutional violations,
Johnson must still exhaust his state remedies before he can petition for a writ of habeas corpus in
federal court. Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th Cir. 1985). The exhaustion requirement
may be met by either (a) providing the highest court in the state a fair opportunity to consider the
constitutional issues, or (b) having no further available means for pursuing a review of one’s
conviction in a state court. Id. It is unclear from the petition whether Johnson has exhausted his
remedies in state court. Although he alleges that he has exhausted his administrative remedies
(Docket # 1 at 9), it is unclear from his petition whether he exhausted his claims at each level of state
court review.
Thus, because it is not clear from the face of the petition that Johnson is not entitled to relief,
the respondent will be called upon to serve and file an answer, motion, or other response to the
petition.
NOW, THEREFORE, IT IS ORDERED that a copy of Johnson’s petition and this order
shall be served upon the respondent by service upon the State of Wisconsin Attorney General.
IT IS FURTHER ORDERED THAT the respondent is directed to serve and file an answer,
motion, or other response to the petition, complying with Rule 5 of the Rules Governing Habeas
Corpus Cases, within SIXTY (60) days of the date of this order.

-3-

IT IS FURTHER ORDERED THAT unless the respondent files a dispositive motion in lieu
of an answer, the parties shall abide by the following schedule regarding the filing of briefs on the
merits of the petitioner’s claims:
1.

The petitioner shall have forty-five (45) days following the filing of the respondent’s

answer within which to file his brief in support of his petition;
2.

The respondent shall have forty-five (45) days following the filing of the petitioner’s

initial brief within which to file a brief in opposition; and
3.

The petitioner shall have thirty (30) days following the filing of the respondent’s

opposition brief within which to file a reply brief, if any.
In the event that respondent files a dispositive motion and supporting brief in lieu of an
answer, this briefing schedule will be suspended and the briefing schedule will be as follows:
4.

The petitioner shall have forty-five (45) days following the filing of the respondent’s

dispositive motion and supporting initial brief within which to file a brief in opposition;
5.

The respondent shall have thirty (30) days following the filing of the petitioner’s

opposition brief within which to file a reply brief, if any.
Pursuant to Civil L.R. 7(f), the following page limitations apply: briefs in support of or in
opposition to the habeas petition or a dispositive motion filed by the respondent must not exceed
thirty pages and reply briefs must not exceed fifteen pages, not counting any statements of facts,
exhibits, and affidavits.

-4-

Dated at Milwaukee, Wisconsin this 4th day of August, 2014.

BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

-5-