Lewis v. Guokas et al
DECISION AND ORDER signed by Judge Lynn Adelman on 10/14/16 that Lewiss petition is DISMISSED without prejudice and with leave to amend. Further ordering Lewis to file an amended petition on the proper forms and naming the proper respondent within 3 0 days of entry of this order, if he wishes to proceed with this action. Further ordering the Clerk of Court to provide Lewis with the appropriate forms for a petition for a writ of habeas corpus pursuant to § 2254, along with a copy of this order. Further ordering that Lewiss motion to proceed without prepayment of the filing fee 2 is DENIED as moot. (cc: all counsel, via USPS to petitioner w/encls.) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TIMOTHY J. LEWIS,
Case No. 16-CV-1288
CHARLES R. GUOKAS, BRIAN HAYES,
JULIELYN SORCE, DIVISION OF HEARINGS
AND APPEALS, and DEPARTMENT OF
DECISION AND ORDER
Timothy Lewis is a Wisconsin prisoner currently in custody at the Milwaukee
Secure Detention Facility. He challenges the revocation of his extended supervision and
the ordered period of reconfinement. The exact nature of this action is not clear
because it comes before me in the form of a petition for a writ of certiorari to the United
States Supreme Court, having already been returned to Lewis unfiled by the Supreme
Court and the United States Court of Appeals for the Seventh Circuit. The Clerk of Court
filed this action as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
This action is more properly treated as a petition pursuant to 28 U.S.C. § 2254.
An action challenging present state custody must proceed under § 2254 “as long as the
person is in custody pursuant to the judgment of a state court, and not in state custody
for some other reason, such as pre-conviction custody, custody awaiting extradition, or
other forms of custody that are possible without a conviction.” Walker v. O’Brien, 216
F.3d 626 (7th Cir. 2000). Lewis is currently in state custody pursuant to a judgment of
conviction of the Wisconsin Circuit Court for Milwaukee County. He challenges his
present state custody.
Upon an initial review of Lewis’s petition, as required by Rule 4 of the Rules
Governing Section 2254 Cases, I note two clear defects. First, this court’s Civil Local
Rule 9(a)(1) requires that habeas petitions under § 2254 be on the “forms available from
the Court.” Lewis’s petition is not. Instead, as noted above, it is in the form of a petition
for a writ of certiorari to the United States Supreme Court.
Second, Lewis has not named a proper respondent to the petition. For habeas
petitions challenging present custody, the proper respondent is the “person who has the
immediate custody of the party detained, with the power to produce the body of such
party before the court or judge.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (quoting
Wales v. Whitney, 114 U.S. 564, 574 (1885)). “[T]here is generally only one proper
respondent” and “the default rule is that the proper respondent is the warden of the
facility where the prisoner is being held.” Id. at 434–35. Consistent with Rumsfeld v.
Padilla, Rule 2(a) of the Rules Governing Section 2254 Cases requires that “[i]f the
petitioner is currently in custody under a state-court judgment, the petition must name
as respondent the state officer who has custody” (emphasis added).
Lewis is in custody at the Milwaukee Secure Detention Facility, so the proper
respondent to this action is that facility’s warden, currently Ronald Malone. Instead,
Lewis named as respondents (1) Charles R. Guokas, the state administrative law judge
who ordered his extended supervision revoked; (2) Brian Hayes, the administrator who
sustained Guokas’s revocation decision and order on appeal; (3) Julielyn Sorce, the
state official who appeared at Lewis’s revocation hearing on behalf of the Wisconsin
Department of Corrections (DOC) Division of Community Corrections, which supervises
state offenders placed on extended supervision; (4) the Wisconsin Department of
Administration’s Division of Hearings and Appeals, which conducts hearings for other
state agencies and conducted Lewis’s revocation hearing; and (5) the DOC itself. With
the exception of the DOC, none of these respondents exercises any semblance of
custody over Lewis. The DOC is not a proper respondent under Rumsfeld v. Padilla or
Rule 2(a) because it is neither a “person” nor a “state officer.”
Apart from these defects in Lewis’s petition, it is not clear whether Lewis meant
to file a petition for a writ of habeas corpus. In Wisconsin, after an administrative appeal,
a prisoner who has had his extended supervision revoked can seek review of the
decision by filing a petition for a writ of certiorari in the Wisconsin Circuit Court. See
State ex rel. Washington v. Schwarz, 620 N.W.2d 414, 419 (Wis. Ct. App. 2000). It is
possible that this is what Lewis was trying to do when he submitted his petition for a writ
of certiorari to the U.S. Supreme Court.
Further, it is not clear whether Lewis has exhausted his available state-court
remedies. State prisoners challenging present custody are required to exhaust “the
remedies available in the courts of the State” before bringing a petition for federal
habeas relief. 28 U.S.C. § 2254(b)(1)(A). Section 2254(b)(1)(A) “requires the petitioner
to assert his federal claim through one complete round of state-court review, either on
direct appeal of his conviction or in postconviction proceedings.” Lewis v. Sternes, 390
F.3d 1019, 1025 (7th Cir. 2004) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45
(1999)). It is not clear whether Lewis has pursued review in Wisconsin’s state courts by
filing a petition for a writ of certiorari in the Wisconsin Circuit Court. He must do that
before he can seek federal habeas relief.
For these reasons, I will dismiss Lewis’s petition without prejudice and with leave
to amend. He may file an amended petition using the proper forms and naming the
proper respondent within 30 days, if he wishes to. Failure to file an amended petition as
directed will likely result in the dismissal of this action.
Lastly, I note that Lewis paid his $5.00 filing fee for this action, so his motion to
proceed without prepayment of the filing fee is moot.
THEREFORE, IT IS ORDERED that Lewis’s petition is DISMISSED without
prejudice and with leave to amend.
IT IS FURTHER ORDERED that Lewis file an amended petition on the proper
forms and naming the proper respondent within 30 days of entry of this order, if he
wishes to proceed with this action.
IT IS FURTHER ORDERED that the Clerk of Court provide Lewis with the
appropriate forms for a petition for a writ of habeas corpus pursuant to § 2254, along
with a copy of this order.
IT IS FURTHER ORDERED that Lewis’s motion to proceed without prepayment
of the filing fee (ECF No. 2) is DENIED as moot.
Dated at Milwaukee, Wisconsin, this 14th day of October, 2016.
s/ Lynn Adelman
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