Grant v. Pollard

Filing 7

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 9/12/201. 2 Petitioner's MOTION for Leave to Proceed in forma pauperis DENIED. Petition DISMISSED with prejudice as frivolous. The Court declines to issue a certificate of appealability. (cc: all counsel, via US mail to James Edward Grant at Waupun Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES EDWARD GRANT,
Petitioner,
v.

Case No. 14-C-1005

WILLIAM POLLARD,
Warden of Waupun Correctional
Institution,
Respondent.

DECISION AND ORDER

Pro se Petitioner James Edward Grant (“Grant”) seeks leave to
proceed in forma pauperis on a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (ECF No. 2.) To authorize a litigant to
proceed in forma pauperis, the Court must make two determinations: 1)
whether the litigant is unable to pay the costs of commencing the action;
and, 2) whether the action is frivolous or malicious. 28 U.S.C. § 1915(a) &
(e)(2). The Court is obligated to give the petitioner‟s pro se allegations,
however inartfully pleaded, a liberal construction. See Haines v. Kerner,
404 U.S. 519, 520–21 (1972).
The Court engages in such review and, as required by Rule 4 of the
Rules Governing Habeas Corpus Cases Under Section 2254, considers

whether it plainly appears from the petition and any attached exhibits that
Grant is not entitled to relief in the district court.
The Court‟s initial review involves determining whether the
petitioner is in custody pursuant to the challenged state conviction,
whether he has set forth cognizable constitutional or federal law claims,
and whether he has exhausted available state remedies.

It is well

established that a prisoner seeking a writ of habeas corpus must exhaust
his state remedies before seeking federal relief. 28 U.S.C. § 2254(b)(1)(A).
In order to comply with this requirement, a state prisoner “must give the
state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State‟s established appellate review
process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Grant‟s petition filed on August 15, 2014, and signed under penalty
of perjury, states that he is serving a 90-day sentence for bail jumping
imposed by the Dane County Circuit Court on April 12, 2012, and lists
10CF0896 or possibly 10CF1896 as the criminal case number.1 (Pet. 2.)
He also states that he had a jury trial and that he filed an appeal on May
23, 2012, asserting there was no underlying crime, insufficient evidence

1

Grant’s penmanship is somewhat challenging to decipher.

-2-

and the vagueness of Wis. Stat. §§ 961.571(1)(a) and (b)(2),2 and the state
approached the judge for discussion of a motion to dismiss.

He lists

similar issues as having been raised in his petition for review.
However,

the

Wisconsin

Circuit

Court

Access

System,

a

computerized public record system that contains information about state
cases, does not contain case number 10CF0896 or 10CF1896 associated
with Grant. See www.wcca.wicourts.gov (last visited September 2, 2014).
Additionally,

neither

circuit

court

nor

Wisconsin

Department

of

Corrections (“DOC”) records show any criminal case number against
Grant with the initial digits “10.” See http://offender.doc.state.wi.us (last
visited September 2, 2014.)
Liberally construed, grounds one through four of Grant‟s petition are
as follows: (1) He was in continuous custody due to his inability to post
bail; (2) “Voir dire was conducted and a jury was impanelled. The state
was sure to be „victorious‟” (Pet. 7); (3) “The „public interest‟ standard is
very broad but there must be „some consideration of the effect of dismissal‟
on the general welfare” (Id. at 8); and (4) A “motion required to be served
on the defendant may be served on the attorney of record” (Id at 9). Grant

Drug paraphernalia is defined in Wis. Stat. § 961.571(1)(a), and § 961.571(b)(2)
excludes certain objects from the definition.
2

-3-

states he did not exhaust his state remedies on any of the four grounds he
raises because he is a “virgin to [the] self litigating processes and
procedures. „Raped‟ of [his] constitutional rights, by prosecutor and public
officer.” (Id. at 7-9.)
Grant‟s petition is legally frivolous because the conviction it
purports to challenge is not verified by state records, the purported
grounds were not presented to the state court, and the stated grounds do
not raise arguable constitutional claims. Therefore, Grant‟s petition is
dismissed.3
Grant‟s filings in this action prompted the Court to research his
litigation history in Wisconsin‟s two federal district courts, disclosing that
this is not the first time a Wisconsin federal district court has found
Grant‟s filings to be frivolous. He has three strikes against him under the
Prison Litigation Reform Act, and his ability to file civil actions has been
curtailed in both federal districts.

See Grant v. Schneider, 14-C-0727,

2014 WL 3737968, at *1 (E.D. Wis. July 30, 2014) (describing Grant‟s
litigation history as “exactly the kind of abusive, meritless, and frivolous
3

The records of the DOC and state circuit court indicate that Grant is currently in custody
for state court convictions in case numbers 12CM1754 for retail theft and disorderly conduct, and
12CM2488 for retail theft. He pled guilty to the charges and was sentenced on October 17, 2012.
He appealed and that appeal is pending before the Wisconsin Court of Appeals.

-4-

conduct that the PLRA was enacted to address.”) Grant also owes $800 in
filing fees in this District and over $10,000 in filing fees in the Western
District of Wisconsin. Id. at *1, 2.
Schneider

also

imposed

an

order

under

Support

Systems

International, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995), directing the
Clerk of Court not to file Grant‟s papers in pending and future cases (other
than a petition for a writ of habeas corpus or document related to a
pending criminal action in which Grant is a defendant) until he has paid
the $800 he owes in fees for his cases in this District. See Schneider, 2014
WL 3737968 at *2, 3. Both Judge Barbra Crabb of the Western District of
Wisconsin and Chief Judge William C. Greisbach of this District have
directed the Clerk of Court to retain Grant‟s unfiled documents in a box
for one year. The box is to be stored so that Grant or anyone else may
review the papers if necessary; the papers will be destroyed after one year.
See id. at *1, 2. Grant filed this action 16 days after the cited Schneider
decision was issued.
Bearing in mind the foregoing federal litigation history, Grant is
advised that this Court may in the exercise of discretion protect itself from
frivolous litigation by imposing monetary sanctions and filing bans. See
Alexander v. United States, 121 F.3d 312, 315 (7th Cir. 1997). At this
-5-

juncture, however, the Court will not exercise such power.
Under Rule 11 of the Rules Governing Section 2254 Cases, the Court
must issue or deny a certificate of appealability when entering a final
order adverse to a petitioner. When the Court dismisses a petition on
procedural grounds, the determination of whether a certificate of
appealability should issue has two components. Slack v. McDaniel, 529
U.S. 473, 484-85 (2000). A petitioner must show that reasonable jurists
would find it debatable whether the court was correct in its procedural
ruling. Id. at 484. And a petitioner must show that reasonable jurists
would find it debatable whether the petition states a valid claim for the
denial of a constitutional right. Id. Grant has filed a frivolous action.
Because there is no basis for finding that jurists of reason would debate
the correctness of this procedural ruling or find a reason to encourage him
to proceed further, the Court declines to issue a certificate of appealability.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Grant‟s petition for leave to proceed in forma pauperis (ECF No. 2)
is DENIED;
Grant‟s petition for a writ of habeas corpus with respect to
purported case number 10CF0896 (or 10CF1896) for felony bail jumping
-6-

(ECF No. 1) is DISMISSED with prejudice as frivolous;
The Court declines to issue a certificate of appealability; and
The Clerk of Court is DIRECTED TO ENTER JUDGMENT
accordingly.
Dated at Milwaukee, Wisconsin, this 12th day of September, 2014.

BY THE COURT:

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

-7-