Griffin v. McKenzie et al

Filing 5

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 2/9/2015. Petition for writ of habeas corpus DISMISSED without prejudice for failure to exhaust state remedies. The Court declines to issue certificate of appealability. (cc: via US mail to Gabriel Griffin at Milwaukee House of Correction)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GABRIEL GRIFFIN,
Petitioner,
v.

Case No. 15-C-140

MICHAEL HAFEMANN
Superintendent of the Milwaukee
County House of Corrections,
Respondent.

DECISION AND ORDER
Pro se Petitioner Gabriel Griffin (“Griffin”), who is being held at the
Milwaukee County House of Correction due to state supervised release
revocation proceedings, filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241, alleging false imprisonment, violation of his right to
due process, false accusations due to the use of “manufactured evidence,”
cruel and unusual punishment and interference with correspondence to the
courts. A preliminary hearing was scheduled for January 7, 2015.
The case is now before the Court for preliminary review of the
petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in
United States District Courts.

Rule 4 provides, upon preliminary

consideration by the district court judge, “[i]f it plainly appears from the

petition and any attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the petition and direct
the clerk to notify the petitioner.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus cases, such as those
under 28 U.S.C. § 2241. See also Civ. L.R. 9(a)(2) (E.D. Wis.)
Section 2241 allows a pretrial detainee to bring a habeas corpus
petition, but this ability is limited by the policy of federal courts not to
interfere with pending state criminal prosecutions except in special
circumstances. Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489-92
(1973); Younger v. Harris, 401 U.S. 37, 43 (1971); Sweeney v. Bartow, 612
F.3d 571, 573 (7th Cir. 2010). “Usually, these types of allegations belong in
a petition for writ of habeas corpus under 28 U.S.C. § 2254, which covers
persons ‘in custody pursuant to the judgment of a State court’ who are
challenging the constitutionality of their incarceration.” Ezzell v. United
States, 13-CV-736-BBC, 2013 WL 6176335, at *1 (W.D. Wis. Nov. 25, 2013).
The general rule is that the detainee must proceed with his claims
through the regular state proceedings, and may raise claims through a 28
U.S.C. § 2254 federal habeas corpus petition only after the completion of
state probation revocation proceedings and the exhaustion of state
remedies.

Wisconsin law provides for review of parole and probation
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revocation decisions “by certiorari directed to the court of conviction,” and
the review proceeds on an “arbitrary and capricious” standard. State ex rel.
Johnson v. Cady, 50 Wis.2d 540, 550, 185 N.W.2d 306, 311 (Wis. 1971);
State ex rel. Reddin v. Galster, 215 Wis. 2d 179, 183-84, 572 N.W.2d 505,
507 (Wis. Ct. App. 1997). O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999),
states that to exhaust state court remedies, a petitioner “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,” including filing petition for discretionary review with state's
highest court. See id. Therefore, Griffin’s petition for a writ of habeas
corpus is dismissed without prejudice for failure to exhaust state remedies.
The Court also declines to issue a certificate of appealability under
Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts because no reasonable jurist would disagree with this
Court’s procedural ruling. Davis v. Borgen, 349 F.3d 1027, 1028 (7th Cir.
2003)) (setting forth requirements for a certificate of appealability); see also
Evans v. Circuit Court of Cook Cty., Ill., 569 F.3d 665, 666 (7th Cir. 2009)
(certificate of appealability is required for appeal from denial of habeas
corpus petition brought under 28 U.S.C. § 2241 when the custody is the
result of a state court order).
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NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Griffin’s petition for a writ of habeas corpus is DISMISSED without
prejudice for failure to exhaust his state remedies;
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 9th day of February, 2015.
BY THE COURT:

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

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