McDonald v. Meisner

Filing 16

ORDER DISMISSING CASE signed by Magistrate Judge William E Duffin on 12/6/2016 DENYING Jimi P. McDonald's petition pursuant to 28 U.S.C. Section 2254. Court DENIES McDonald a certificate of appealability. Respondent Judy P Smith added and respondent Michael Meisner terminated. Judgment to be entered. (cc: all counsel - via US Mail to Jimi P. McDonald at Oshkosh Corr. Inst.)(lz)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JIMI P. MCDONALD,
Petitioner,
v.

Case No. 15-CV-566

JUDY P. SMITH,1
Respondent.

DECISION AND ORDER

I.

Background
On December 16, 2005, plaintiff Jimi P. McDonald was sentenced to five years in

prison and two years of extended supervision for one count of substantial battery with
use of a dangerous weapon “stemming from a September 2004 incident in which he
battered someone with a tire iron during a bar brawl.” (ECF Nos. 13-1; 13-5, ¶ 2.) That
sentence was stayed and McDonald was placed on three years of probation. (ECF No.

Records of the Wisconsin Department of Corrections state that petitioner Jimi P. McDonald is currently
incarcerated at Oshkosh Correctional Institution, http://offender.doc.state.wi.us/lop/, and the warden of
this institution is Judy P. Smith, http://doc.wi.gov/families-visitors/find-facility/oshkosh-correctionalinstitution (last visited December 5, 2016). Therefore, in accordance with Rule 2(a) of the Rules Governing
Section 2254 Cases and Fed. R. Civ. P. 25(d), the caption is updated accordingly.
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13-1.) The court ordered the sentence to be served consecutive to any other sentence.
(ECF Nos. 13-1; 13-2 at 32.)
At the time of sentencing McDonald was serving an unrelated sentence in
Illinois. McDonald’s Wisconsin probation agent sent him a letter on October 23, 2007,
reminding McDonald that he was required to notify her upon his release from Illinois
custody. (ECF No. 13-2 at 32.) McDonald was released from Illinois custody on
November 16, 2007. (ECF No. 13-2 at 32.) He did not notify his probation agent of his
release, and when his probation agent learned of his release she issued an apprehension
request on December 19, 2007. (ECF No. 13-2 at 32.)
On January 24, 2008, McDonald was arrested in Illinois for robbing a gas station.
The Wisconsin probation agent cancelled the apprehension request but asked Illinois to
hold McDonald for the Wisconsin Department of Corrections. (ECF No. 13-2 at 32.)
McDonald apparently remained in pretrial custody in Illinois until January 5, 2009,
when he was convicted of the robbery and sentenced to five years in prison. (ECF No.
13-2 at 32.) He received 346 days of credit toward the Illinois sentence for the time he
spent in pretrial detention. He was released from prison in Illinois on November 26,
2012. (ECF No. 13-2 at 32.) He was then extradited to Wisconsin, where he stipulated to
the revocation of his probation in the substantial battery case. (ECF No. 13-2 at 32.)
The question as to the amount of credit to which McDonald was entitled on his
revocation sentence was first presented to an administrative law judge (ALJ). The ALJ

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concluded that McDonald was entitled to sentence credit for the time he spent in
pretrial detention in Illinois. However, he was “not entitled to credit for the time he
began to serve the new Illinois sentence (January 5, 2009) through the date he paroled
on that Illinois sentence and became available to Wisconsin (November 26, 2012).” (ECF
No. 13-2 at 32.) The ALJ stated, “Case law provides that an offender is not entitled to
custody credit for time served after he was sentenced in a different state because the
sentencing in the other state severed the connection between his custody and
Wisconsin. See State v. Beets, 124 Wis.2d 372, 369 N.W.2d 382 (1985); see also State v.
Carter, 2007 WI App 255, 306 Wis.2d 350, 743 N.W.2d 700.” (ECF No. 13-2 at 32.)
The Division of Hearing and Appeals agreed with the ALJ’s decision. (ECF No.
13-2 at 34-35.) McDonald sought certiorari review in the circuit court, which the court
also construed as a petition for a writ of habeas corpus. (ECF No. 13-2 at 36-41.) The
circuit court denied McDonald relief (ECF No. 13-2 at 36-41) and McDonald appealed
(ECF No. 13-2).
He argued that he also was entitled to credit from January 5, 2009 to
November 26, 2012, the time he served for the Illinois robbery, because he
was on a Wisconsin probation hold during that time. Alternatively, he
argued that at a minimum he should be credited with the last thirty-six
months of his Illinois sentence because under “standard Illinois procedure
he would have been released when he became 36 months short of his
mandatory release date,” but was “forced” to serve the remainder due to
the probation hold.
(ECF No. 13-5, ¶ 5.)

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Relying on state law the Wisconsin Court of Appeals concluded that McDonald
was not entitled to credit for the time he spent serving the sentence in Illinois for
conduct unrelated to his Wisconsin sentence. McDonald argued that he served the last
three years in custody only because of an Illinois policy precluding release for persons
who are subject to detainers; but for the Wisconsin detainer, he alleged, he would have
been released three years earlier. (ECF No. 13-5, ¶ 10.) The court of appeals found that
McDonald failed to show that the Wisconsin detainer, in fact, kept him in custody any
longer than he otherwise would have been incarcerated. (ECF No. 13-5, ¶ 10.)
The court of appeals also rejected McDonald’s argument that his right to due
process was violated by the Department of Correction’s failure to commence revocation
proceedings before he completed the Illinois sentence, despite McDonald’s repeated
requests that it do so. (ECF No. 13-5, ¶¶ 11-15.) The Wisconsin Supreme Court denied
review (ECF No. 13-8), and on May 11, 2015, McDonald filed the present petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The petition was initially assigned to the Honorable Lynn Adelman, who
screened the petition in accordance with Rule 4 of the Rules Governing Section 2254
Cases. (ECF No. 5.) In addition to ordering the respondent to answer the petition, Judge
Adelman set deadlines for the parties to submit their respective briefs. (ECF No. 5.) The
case was subsequently reassigned to this court upon all parties consenting to the full
jurisdiction of a magistrate judge. (ECF Nos. 4, 8, 10.)

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Although the respondent answered the petition (ECF No. 13), McDonald did not
submit anything further. The deadline for doing so having long since passed,
McDonald’s petition is subject to dismissal pursuant to Civil Local Rule 41(c) for his
failure to diligently prosecute this action. Nonetheless, the court will proceed to
consider McDonald’s claim on its merits, relying on the record as it currently exists.
II.

McDonald’s Habeas Claims
McDonald presents four overlapping claims for relief in his petition. Ground

One contends that each day McDonald spent in custody in Illinois should have counted
toward his Wisconsin sentence, either by way of his right to statutory sentence credit or
by way of a statutory right to serve his sentences concurrently. (ECF No. 1 at 6-7.)
Alternatively, he argues that he should have received credit for the last 36 months he
served in Illinois. (ECF No. 1 at 7.) Ground Two alleges that McDonald’s right to due
process was violated by Wisconsin’s failure to hold a revocation hearing during the
time he was incarcerated in Illinois. (ECF No. 1 at 7-8.) This delay allegedly affected his
eligibility for certain opportunities in prison. (ECF No. 1 at 8.) Ground Three generally
restates McDonald’s second ground as a violation of his right to a speedy trial. Finally,
Ground Four contends that McDonald’s right to equal protection was violated by the
delays in commencing his revocation hearing, the denial of credit for time spent in
custody in Illinois, the denial of the opportunity to serve his Wisconsin sentence
concurrent to his Illinois sentence, and being treated differently than other Illinois

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inmates due to the Wisconsin hold. (ECF No. 1 at 9.) In sum, McDonald has three
complaints: he should receive credit toward his Wisconsin sentence for more, if not all,
of the time he spent in Illinois custody; his Wisconsin sentence should have been served
concurrent with his Illinois sentence; and Wisconsin should have been quicker to revoke
his probation.
A. Counting Time Spent in Illinois Custody Toward Wisconsin Sentence
McDonald contends that each day he spent in custody in Illinois should have
counted toward his Wisconsin sentence, either by way of his right to statutory sentence
credit or by way of a statutory right to serve his sentences concurrently.
There are two common ways by which an inmate might receive double credit for
time spent in custody. The first is what is commonly referred to as sentence credit,
which is largely automatic, a matter of statute, and generally applies to time in custody
before trial. 2 The second is when a court imposes a sentence to run concurrent, as
opposed to consecutive, to another sentence and applies only to time spent in custody
post-conviction.
1. Sentence Credit
The court begins with the time McDonald spent in custody in Illinois awaiting
trial on the robbery charge. McDonald contends that, but for Wisconsin’s hold, he

This is distinct from “sentence credit” in the sense of credit earned towards early release--for example,
for good behavior in some jurisdictions.

2

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would have been released on bond. Due to Wisconsin delaying action on its hold,
McDonald was unnecessarily kept in custody.
Under Wisconsin law “[a] convicted offender shall be given credit toward the
service of his or her sentence for all days spent in custody in connection with the course
of conduct for which sentence was imposed.” Wis. Stat. § 973.155(1)(a). The ALJ
concluded that McDonald’s time in custody awaiting trial in Illinois was related to the
Wisconsin battery because Wisconsin’s probation hold was in place. Because that time
in custody in Illinois was “spent in custody in connection with the course of conduct for
which sentence was imposed,” it was credited toward the time he was eventually
ordered to serve for the Wisconsin battery. See State v. Carter, 2010 WI 77, ¶ 53. Illinois
has a similar law, 730 ILCS 5/5-4.5-100(b), (c), and thus each day McDonald spent in
custody awaiting trial in Illinois counted toward both the Illinois robbery and the
Wisconsin battery convictions.
Because the time McDonald spent awaiting trial in Illinois was double-counted
toward both his Illinois and Wisconsin sentences, he cannot show that he will spend
any additional time in custody as a result of Wisconsin’s decision not to proceed with
revocation while he was awaiting trial in Illinois. In fact, Wisconsin’s delay might have
actually shortened the overall time McDonald will spend in custody because it resulted
in the period of pretrial detention counting toward both his Illinois and Wisconsin
sentences. Therefore, there is no merit to this aspect of McDonald’s claim.

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Once the Illinois court sentenced McDonald to serve five years in prison for the
Illinois robbery, he was no longer in custody by virtue of the hold placed on him as a
result of the Wisconsin battery conviction. Thus, McDonald could not rely on statutory
sentence credit under Wis. Stat. § 973.155(1)(a) as a means for double-counting the years
he was in prison for the Illinois robbery.
2. Concurrent Sentences
Under Wisconsin law a sentencing court “may provide that any such sentence be
concurrent with or consecutive to any other sentence imposed at the same time or
previously.” Wis. Stat. § 973.15(2)(a). When the Wisconsin court sentenced McDonald,
it lacked the authority to order that its sentence was to be served either concurrent or
consecutive to any future sentence that might be later imposed. But even if the
Wisconsin court had such authority, the terms of the Wisconsin court’s sentence would
not assist McDonald’s present argument because the court ordered its sentence to be
served consecutive to any other sentence.
Under current Illinois law there is a presumption that, if a person sentenced in
Illinois is serving a sentence in another state, the Illinois sentence will be concurrent
with the sentence of the other state. 730 ILCS 5/5-8-4(a). However, that presumption did
not exist prior to July 1, 2009, see Ill. ALS 1052. Under the law in effect when McDonald
was sentenced for the Illinois robbery, “[w]hen multiple sentences of imprisonment are
imposed on a defendant at the same time, or when a term of imprisonment is imposed

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on a defendant who is already subject to sentence in this State or in another state, … the
sentences shall run concurrently or consecutively as determined by the court.” See also
State v. Brown, 2010 WI App 43, ¶9 (citing People ex rel. Hesley v. Ragen, 396 Ill. 554, 72
N.E.2d 311, 315-16 (1947)) (Illinois “considers sentences of imprisonment in different
sovereignties as consecutive sentences.”). Thus, McDonald has failed to support his
claim to a “statutory right to serve his sentences concurrent.” (ECF No. 2 at 2.)
Even if he does not have a statutory right to have his sentences run concurrently,
McDonald asserts that the Illinois court actually ordered that his Illinois sentence was to
run concurrent with his prior Wisconsin sentence. (ECF No. 2 at 1-2.) However, he
offers no support for that claim. The Illinois robbery judgment makes no mention of the
Wisconsin battery conviction. (ECF No. 13-6 at 45.) The only reference in the judgment
to any prior conviction is to two prior Illinois cases. (ECF No. 13-6 at 45.) And the court
ordered that McDonald serve the robbery sentence consecutive to the sentences imposed
in those two cases. That strongly suggests that the Illinois court intended that
McDonald not get double-credit for time spent serving the Illinois robbery sentence.
(ECF No. 13-6 at 45.) The fact that McDonald received credit in both his Wisconsin and
Illinois cases for the time spent awaiting trial in Illinois does not, in any way, indicate
that the Illinois court ordered the Illinois sentence was to be served concurrent to the
Wisconsin sentence.

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In the absence of evidence that the Illinois court ordered its sentence was to be
served concurrent to the Wisconsin sentence, McDonald has failed to prove that he is in
custody as a result of Wisconsin’s delay in pursuing revocation of his probation. Stated
another way, McDonald has failed to demonstrate that he would be spending less time
in custody had Wisconsin immediately revoked his probation.
Habeas corpus relief under § 2254 is limited to claims that involve the right to be
released. See 28 U.S.C. § 2254(a); Washington v. Smith, 564 F.3d 1350, 1350 (7th Cir. 2009)
(“It is the custody itself that must violate the Constitution.”). Federal courts may grant
relief in habeas claims only when a violation of clearly established federal law led to the
petitioner being in custody. It is not enough that the petitioner is in custody; the
petitioner’s custody must be the result of the alleged violation of federal law. See
Virsnieks v. Smith, 521 F.3d 707, 720–21 (7th Cir. 2008).
McDonald’s claim fails at this threshold consideration. Thus, it is unnecessary for
the court to consider the subsequent question of whether the Wisconsin court’s denial of
relief to McDonald was contrary to or an unreasonable application of clearly established
federal law. Having failed to show that his custody was prolonged due to Wisconsin’s
delay, McDonald is not entitled to habeas relief.
B. Effect of Wisconsin’s Probation Hold
McDonald also argues that Wisconsin unconstitutionally delayed its revocation
proceedings. McDonald contends that absent Wisconsin’s unexecuted hold he would

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have been afforded additional prison programming and released earlier from prison in
Illinois. (ECF No. 1 at 7-8.) According to McDonald, but for Wisconsin’s probation hold,
“under normal Illinois’ [sic] procedures he would have been released from
imprisonment at 36 months short of his mandatory release date”. (ECF No. 2 at 2.)
However, McDonald does not identify the source of the alleged “normal Illinois
procedures” nor does he identify what procedures he is talking about. Neither before
the court of appeals (see ECF No. 13-5, ¶ 10) nor before this court has McDonald cited
any statute, regulation, rule, or case setting forth these alleged procedures.
McDonald was sentenced to serve five years in prison in Illinois. That sentence
was consecutive to two other Illinois sentences. McDonald has not presented evidence
of how long these other sentences were. He ended up spending from January 24, 2008,
through November 26, 2012, in Illinois custody, a total of four years, ten months, and
two days. Under Illinois law, under the best of circumstances, inmates can generally
expect to serve, at a minimum, 50 percent of their sentences. See 730 ILCS 5/3-6-3. Given
the unknown amount of time left to serve on the two consecutive Illinois sentences
referenced in the Illinois sentencing document (ECF No. 13-6 at 45), and the uncertainty
of good time credit, on its face the term of incarceration that McDonald ended up
serving does not appear inconsistent with the “normal Illinois procedures” the court is
able to identify as set forth in 730 ILCS 5/3-6-3.

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McDonald has failed to demonstrate that Wisconsin’s unpursued probation hold
caused him to serve additional time in Illinois custody (thus delaying the
commencement of his Wisconsin sentence and his eventual release from custody).
As for his claim that Wisconsin’s hold led to him being denied “rehabilitation
serv[ices], transfers and jobs / release” (ECF No. 1 at 8), McDonald offers nothing to
support the claim. McDonald having failed to develop or support this claim, the court
will not consider it further.
C. Speedy Trial
McDonald argues that Wisconsin violated his constitutional right to a speedy
trial by delaying his revocation proceeding. He contends that as a result he “suffered an
oppressive pretrial incarceration,” “was subjected to unnecessary anxiety,” his “defense
was impaired,” and he “lost his statutory right to serve his sentences concurrent.” (ECF
No. 1 at 8.)
As to the last point, as discussed above, McDonald has failed to demonstrate any
such statutory right to serve his Wisconsin revocation sentence concurrent with his
Illinois robbery sentence. As to the other points, McDonald has failed to show that the
delay prejudiced him in any way. McDonald has failed to present any evidence that the
outcome of the Wisconsin revocation proceedings would have been any different had
they occurred sooner.

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III.

Conclusion
McDonald has failed to demonstrate any right to serve his Wisconsin sentence

concurrent to the Illinois sentence. Nor has McDonald shown that he was entitled to
any additional credit toward his Wisconsin sentence for time he spent in custody in
Illinois. Even if Wisconsin had immediately revoked his probation, McDonald has failed
to show that it would have resulted in him spending less time in custody. Thus,
McDonald has failed to show that his custody is the result of any alleged violation of
federal law, much less a violation of clearly established federal law and that the court of
appeals’ decision to the contrary was unreasonable. Consequently, the court must deny
McDonald habeas relief.
Finally, in accordance with 28 U.S.C. § 2253(c)(2) and Rule 11 of the Rules
Governing Section 2254 Cases, the court finds that McDonald has failed to make a
substantial showing of a denial of a constitutional right. Therefore, the court denies
McDonald a certificate of appealability.
IT IS THEREFORE ORDERED that McDonald’s petition for a writ of habeas
corpus is denied and this action is dismissed. The Clerk shall enter judgment
accordingly.
Dated at Milwaukee, Wisconsin this 6th day of December, 2016.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge
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