Simpson v. Pollard

Filing 9

ORDER DISMISSING CASE signed by Judge Rudolph T Randa on 2/20/2015. Governor Scott Walker and the Wisconsin Department of Corrections are DISMISSED. William Pollard is a proper respondent. Simpson's petiton is DISMISSED for lack of jurisdiction. Simpson's 4 MOTION for Leave to Proceed in forma pauperis is DENIED as moot. Simpson's 8 MOTION for Partial Dismissal is DENIED as moot. The Court DECLINES TO ISSUE a certificate of appealability. (cc: all counsel)(Zik, Linda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIE SIMPSON,
Petitioner,
-vs-

Case No. 15-C-171

WILLIAM POLLARD,
Warden of Waupun Correctional Institution,
Respondent.

DECISION AND ORDER

By a petition and supporting documents filed on February 12, 2015,
Petitioner Willie Simpson (“Simpson”) seeks leave to proceed in forma
pauperis on his petition for habeas corpus relief under 28 U.S.C. § 2241
challenging the fact and duration of his continued incarceration.

(ECF

Nos. 1-4.)
To proceed under § 2241, a prisoner must name his custodian
(typically, the warden) as respondent. See Samirah v. O'Connell, 335 F.3d
545, 551 (7th Cir. 2003).

Although Simpson purports to bring his habeas

petition pursuant to § 2241, Rule 1(b) of the Rules Governing § 2254 Cases
and Civil L.R. 9(a)(2) (E.D. Wis.) provide for the application of the § 2254
Rules to other habeas petitions.

Simpson has named as a respondent

William Pollard (“Pollard”), the custodian of Waupun Correctional
Institution where Simpson is confined.

Pollard is a proper respondent.

See Rule 2(a) of the Rules Governing § 2254 Cases. Simpson also named
Governor Scott Walker (“Walker”) and the Wisconsin Department of
Corrections (“DOC”) as respondents. Neither Walker nor the DOC is a
proper respondent; therefore, they are dismissed from the action.
Relevant Criminal Convictions 1
Simpson was first convicted in the Milwaukee County Circuit Court
in 1997 of second-degree sexual assault of a child under Wis. Stat. §
948.02(2).

The court stayed the resulting 15-year prison sentence and

placed Simpson on probation, which was revoked in 1999 after he molested
a 6-year-old. He was subsequently convicted of two counts of first-degree
sexual assault of a child under Wis. Stat. § 948.02(1) and sentenced to two
consecutive prison terms of 25 years each.
In 2012, Simpson was convicted in Dodge County Circuit Court, case
number 12CF066, of battery by prisoners, bail jumping and disorderly
conduct in violation of Wis. Stat. §§ 940.20(1), 946.49(1)(b), and 947.01,
The Court recognizes that Rule 2(c) of the Rules Governing § 2254 Cases
provides that a petitioner who seeks relief from more than one state court judgment
must file a separate petition covering the judgment(s) of each state court. However,
under the circumstances of this case, this Court declines to further increase the burden
presented by this petition by opening additional case files for each challenged
conviction.
1

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respectively. (See http://wcca.wicourts.gov/ last visited Feb. 20, 2015). The
Dodge County case resulted in three consecutive prison terms of 5 years, 1
year, and 90 days, respectively, that are consecutive to Simpson’s previous
sentences. Simpson appealed the Dodge County convictions. The appeals
were dismissed by the Wisconsin Court of Appeals on July 24, 2014. See
State v. Simpson, Nos. 2014AP001477, 2014AP001419.
In 2013, Simpson was convicted in Grant County Circuit Court case
numbers 11CF123 of one count of battery by prisoners with a resulting 3year prison sentence consecutive to the sentence Simpson is currently
serving and 11CF220 of six counts of prisoner throwing/expelling bodily
substances in violation of Wis. Stat. § 946.43(2m)(a) with two resulting
consecutive 2-year and 6-month prison terms (counts one and two),
consecutive to Simpson’s current sentences, and three 2-year and 6-month
prison terms, concurrent to the count one sentence (counts three, five, and
six), and one 2-year and 6-month prison term, concurrent to the sentence
on count two (count four). By a January 23, 2015, order the Wisconsin
Court of Appeals extended the time to for Simpson to make arrangements
with the court reporter to pay for the preparation of transcripts and to
order the circuit court case record until February 23, 2015, and stated that
subsequent deadlines will run from the dates of the requests. See State v.
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Simpson, 2014XX001155-CR (Wis. Ct. App.) (http://wscca.wicourts.gov/ last
visited Feb. 20, 2015).
Grounds for Relief
Simpson’s petition for habeas relief lists two grounds for relief.
Ground one alleges Fourteenth Amendment liberty interest violations
arising from application of Wis. Admin. Code § DOC 303.01(1) and (2) to
his 1999 conviction and the convictions in Dodge County Circuit Court,
case number 12CF066, and in Grant County Circuit Court case numbers
11CF123 and 11CF220.

Ground two alleges Fourteenth Amendment

liberty interest violations arising from application of Wis. Admin. Code §
DOC 302.04 2 to his convictions in Dodge County Circuit Court, case

2

Wisconsin Administrative Code § DOC 302.04 provides:
(1) The purpose of a custody classification is to determine
the appropriate placement of an inmate in order to regulate
the supervision and movement of inmates among
institutions, and between institutions and community
programs.
(2) Custody classification is determined by assessing the
risk of each inmate regarding all of the following:
(a) Assaultive or predatory behavior.
(b) Escape, walk-away, and absconding occurrences.
(c) Violation of inmate disciplinary rules under ch. DOC
303.
(d) Disruption to the orderly processes of an institution.

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number 12CF066, and in Grant County Circuit Court case numbers
11CF123 and 11CF220. Simpson asserts that he has exhausted his
remedies by filing an inmate complaint and appealing to the warden.
Subsequently, Simpson filed a motion for partial dismissal pursuant
to Fed. R. Civ. P. 41 regarding his claim upon the contention that the DOC
violated his Fourteenth Amendment liberty interest in freedom from
judgments of a court lacking jurisdiction by applying Wisconsin
Administrative Code § DOC 303.01(1) and (2). (ECF No. 8.)
As grounds for this request, Simpson states that he raised a similar
ground in a petition under § 2241 that he filed in the Western District of
Wisconsin, which was dismissed as a successive petition. See Simpson v.
Pollard, No. 14-CV-511, 2015 WL 518805, at *2 (W.D. Wis. Feb. 9, 2015).
Simpson states he appealed the ruling and that the decision will be
dispositive with respect to the similar issue in this action.
(e) Participation and progress in program or treatment.
(f) Adjustment and history under community supervision.
(g) Pending legal processes.
(3) The department initiates custody classification at A&E
and changes it by an individualized assessment through the
program review process using factors identified in s. DOC
302.07.

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Prior Habeas Petitions
In addition to the 2014 Western District of Wisconsin petition,
Simpson has previously filed petitions under § 2254 attacking one or more
of the convictions that are involved in Simpson’s current petition. In 2002,
Simpson filed two petitions for relief in this District pursuant to 28 U.S.C.
§ 2254. See Simpson v. Kingston, No. 02-cv-01099, 2006 WL 272759 (E.D.
Wis. Feb. 2, 2006) (denying petition); Simpson v. Kingston, No. 02-cv01100 (E.D. Wis. July 18, 2003)(denying petition).
In 2012, Simpson filed a § 2254 petition in this District challenging
his confinement under his Milwaukee County conviction by arguing that
DOC officials had illegally changed his sentence. The court denied the
petition and final judgment was entered. Simpson v. Haines, No. 12-cv410, 2013 WL 5493993, at *2 (E.D. Wis. Oct. 2, 2013). Simpson did not
appeal.
In 2014, Simpson filed another habeas petition in this District
challenging his pretrial confinement related to a case in Dodge County
Circuit Court, case number 12CF066, and in two Grant County Circuit
Court convictions in case numbers 11CF123 and 11CF220 arguing that
the Wisconsin Secure Program Facility’s warden had not properly taken
the oath of office. That petition was dismissed for failure to exhaust his
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state remedies and because its theory was unsupportable.

Simpson v.

DOC, No. 14-cv-00197, slip op. at 3-4 (E.D. Wis. Mar. 17, 2014), aff’d, No.
14-2056 (7th Cir. Oct. 23, 2014).
The Court of Appeals for the Seventh Circuit affirmed the judgment
holding that the Wisconsin statute regarding publicly filing an oath of
office did not create a liberty interest. It also noted that in 2012 it had
dismissed Simpson’s application to file a successive habeas petition
attacking the execution of his sentence, citing No. 12-1822 (7th Cir. Apr.
12, 2012).
Analysis
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) a district court may not consider a second or otherwise
successive § 2254 petition unless the prisoner has previously obtained
authorization from the appropriate court of appeals. 28 U.S.C. § 2244(b).
Any attempt to obtain some advantage by filing the petition under § 2241
is to no avail because Simpson is challenging his custody under multiple
state convictions. Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000)
(“[Section] 2254 [is] the exclusive vehicle for prisoners in custody pursuant
to a state court judgment who wish to challenge anything affecting that
custody, because [Felker v. Turpin, 518 U.S. 651 (1996)] makes clear that
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bringing an action under § 2241 will not permit the prisoner to evade the
requirements of § 2254.”)). “[A]s a practical matter the requirements of
§ 2254 must be met by all state prisoners filing petitions for writs of
habeas corpus after conviction.” Walker, 216 F.3d at 633. With respect to
each conviction Simpson challenges, he has litigated a federal habeas
corpus petition. Thus, his current petition is successive under the Rules
Governing Section 2254.
If a prisoner files a successive § 2254 petition in a district court
without having obtained such authorization, the court must dismiss it for
want of subject matter jurisdiction. Nunez v. United States, 96 F.3d 990,
991 (7th Cir. 1996). Since Simpson’s petition is actually an unauthorized
successive § 2254 petition, it must be dismissed for lack of jurisdiction.
Simpson’s motions for leave to proceed in forma pauperis and Rule 41
partial dismissal are moot and therefore denied. This Court also declines
to issue a certificate of appealability because the procedural and
substantive issues raised Simpson’s petition do not satisfy the applicable
criteria.
Additionally, given the record of Simpson’s repetitious and frivolous
habeas corpus filings, the Court advises Simpson that, regardless of any
creative labelling, future filings that are in substance a petition for a writ
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of habeas corpus may be subject to sanctions in the form of filing
restrictions and/or fines. See e.g., Montgomery v. Davis, 362 F.3d 956, 957
(7th Cir. 2004) (recognizing court’s inherent authority to sanction party for
abusive filing of habeas petitions); Alexander v. United States, 121 F.3d
312, 315 (7th Cir. 1997) (instituting sliding scale fine and barring
petitioner from filing future civil litigation for successive habeas petition
filing); United States v. Robinson, 251 F.3d 594, 596 (7th Cir. 2001). 3
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Walker and the DOC are DISMISSED from this action;
Simpson’s petition for a writ of habeas corpus (ECF No. 1) is
DISMISSED for lack of jurisdiction;
Simpson’s motion for leave to proceed in forma pauperis (ECF No. 2)
is DENIED as moot;
Simpson’s motion for partial dismissal under Rule 41 (ECF No. 8) is
DENIED as moot;
The Court DECLINES TO ISSUE a certificate of appealability; and

On several occasions, courts have dismissed Simpson’s civil suits and imposed a
strike under 28 U.S.C. 1915(g) because actions were frivolous, malicious, or failed to
state a claim. E.g., Simpson v. Haines, 536 F. App’x 657 (7th Cir. 2013); Simpson v.
Douma, 04-C-298-C, 2004 WL 1563284 (W.D. Wis. June 30, 2004); Simpson v. Wall, 04C-29-C, 2004 WL 720276 (W.D. Wis. Mar. 29, 2004).
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The Clerk of Clerk is DIRECTED to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 20th day of February, 2015.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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