Jones v. Schaub

Filing 41

ORDER signed by Judge Pamela Pepper on 5/8/2017 GRANTING 14 Respondent's Motion to Dismiss; DENYING WITHOUT PREJUDICE 1 Petition for a Writ of Habeas Corpus; and DENYING AS MOOT 19 Motion to Stay Sentence, 22 36 Motion to Void and Nu llify Conviction, 26 Motion for Reconsideration, 27 32 Motion for evidentiary hearing, 28 Motion to Appoint Counsel, 29 Motion for Discovery, 31 Motion for Order of Inquiry, 33 Motion for Order to Nullify Conviction, 34 Motion to Expedite the Disposition, and 35 Motion to Substitute Respondent. (cc: all counsel; by US Mail to Petitioner)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHAFIA JONES,

Case No. 16-cv-1427-PP
Petitioner,

v.
ROBERT HUMPHREYS,1
Respondent.
ORDER GRANTING RESPONDENT’S MOTION TO DISMISS PETITION (DKT.
NO. 14); DENYING WITHOUT PREJUDICE PETITION FOR
A WRIT OF HABEAS CORPUS (DKT. NO. 1); AND DENYING AS MOOT ALL
OTHER PENDING MOTIONS
On October 24, 2016, Shafia Jones filed a petition for writ of habeas
corpus under 28 U.S.C. §2254. Dkt. No. 1. She challenges her 2016 conviction
on five grounds: (1) that the Fond du Lac County Circuit Court did not have
subject matter jurisdiction over her case; (2) that she is innocent; (3) that her
trial counsel was ineffective; (4) that her conviction violated the Double
Jeopardy clause; and (5) that she was denied a jury trial. Id. The court
screened the petition, and set a deadline for the respondent to answer. Dkt. No.
8. In lieu of an answer, the respondent filed a motion to dismiss for failure to
exhaust state remedies (or, in the alternative, for procedural default). Dkt. No.
14. The parties have fully briefed the issues. The court will deny the petition.

At the time the petitioner filed her petition, she listed the warden of
Taycheedah Correctional Institution as Deanne Schaub. Dkt. No. 1. The
current warden is Robert Humphreys.
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I.

FACTUAL BACKGROUND
Charged with one count of armed robbery, one count of robbery of a

financial institution, and two counts of bail jumping, the petitioner entered an
Alford plea to the robbery charge, and the Fond du Lac County Circuit Court
dismissed and read in the other two charges. Dkt. No. 15 at 2, 4. See North
Carolina v. Alford, 400 U.S. 25 (1970) (holding that a court may accept a
defendant’s guilty plea even if it is accompanied by the defendant’s
protestations of innocence). Two days later, the circuit court allowed the
petitioner to withdraw her plea. Id. At the state’s request, however, the circuit
court reconsidered that decision. Id. at 4-5. On January 22, 2016, the circuit
court entered the judgment of conviction on the single count of robbery of a
financial institution. Dkt. No. 15-6 at 1.
The circuit court sentenced the petitioner to serve four years of
confinement, followed by six years of extended supervision. Id. Although the
petitioner filed a notice of intent to appeal, dkt. no. 15 at 5, she never followed
up by filing either a post-conviction motion or a direct appeal, id. at 6. When
the petitioner’s post-conviction counsel withdrew, the circuit court extended
the petitioner’s appeal deadline until September 7, 2016. Id. Again, the
defendant failed to file an appeal, and the conviction became final on that date
on September 7, 2016.
Although she never filed an appeal, however, the defendant filed multiple
state habeas petitions. Dkt. Nos. 15-1, 15-2, 15-10. In a written order denying
one of those petitions, the Wisconsin Court of Appeals stated that the “petition
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must fail, as [the petitioner] has not demonstrated that she has no other
adequate remedy available in law.” Dkt. No. 15-8 at 2. Because the petitioner
failed to pursue other available remedies aside from filing habeas petitions, the
respondent asks the court to deny this federal petition for failure to exhaust
state remedies. Dkt. No. 15 at 7-8. In the alternative, the respondent asks that
if the court finds that the petitioner no longer has any state remedies, it deny
the petition on the ground that the petitioner has procedurally defaulted on her
claims. Id. at 7.
II.

STANDARD
Under 28 U.S.C. §2254(b)(1)(A), federal courts cannot grant habeas relief

unless a petitioner first exhausts her available state court remedies. Generally,
a court considers a claim exhausted only if a petitioner presents it through one
“complete round of the State’s established appellate review process.” Woodford
v. Ngo, 548 U.S. 81, 92 (2006) (citation omitted). But, “state-court remedies are
[also] described as having been ‘exhausted’ when they are no longer available,
regardless of the reason for their unavailability.” Id. at 92-93. Thus, “[a] specific
claim is not considered exhausted if the petitioner ‘has the right under the law
of the State to raise, by any available procedure, the question presented.’”
Brown v. Wisconsin, No. 14-C-0872, 2015 WL 631288, at *2 (E.D. Wis. Feb.
12, 2015), appeal dismissed (Mar. 13, 2015), certificate of appealability denied
(June 25, 2015) (quoting 28 U.S.C. §2254). If a federal district court finds that
a petitioner has not exhausted all of her state claims, it must dismiss the
federal habeas petition without prejudice, to allow the petitioner to return to
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state court. See Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy,
455 U.S. 509, 522 (1982); see 28 U.S.C. § 2254(b)(1)(A).
III.

DISCUSSION
The respondent argues that even though the petitioner filed various

petitions for state writs of habeas corpus, she has not exhausted her claims in
state court. Dkt. No. 15 at 7. The court agrees.
A petitioner cannot petition for a writ of habeas corpus in a Wisconsin
state court without demonstrating “that there is no other adequate remedy
available in the law.” State ex rel. Krieger v. Borgen, 687 N.W.2d 79, 82 (Wis.
Ct. App. 2004) (citing State ex rel. Haas v. McReynolds, 643 N.W.2d 771, 77576 (Wis. 2002)). In situations where the petitioner failed to file a direct appeal
or immediate post-conviction motion, Wis. Stat. §974.06 provides an
alternative:
After the time for appeal or postconviction remedy
provided in s. 974.02 has expired, a prisoner in
custody under sentence of a court . . . claiming the
right to be released upon the ground that the sentence
was imposed in violation of the U.S. constitution or the
constitution or laws of this state, that the court was
without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum
authorized by law or is otherwise subject to collateral
attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.
Wis. Stat. §974.06(1). “The postconviction motion procedure under § 974.06
was designed to replace habeas corpus as the primary method in which a
defendant can attack his conviction after the time for appeal has expired.”
State ex rel. Krieger, 687 N.W.2d at 82 (quoting State v. Escalona-Naranjo, 517
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N.W.2d 157, 160 (Wis. 1994)) (internal citations omitted). A state inmate may
make this type of motion “at any time.” Wis. Stat. §974.06(2). So—in cases
where an inmate did not file a post-conviction motion or direct appeal, the
inmate may not file a state habeas petition under Wis. Stat. §782.01 until she
first takes advantage of the post-conviction procedures under Wis. Stat.
§974.06. State ex rel. Krieger, 687 N.W.2d at 82 .
Here, the petitioner failed to file a direct appeal, even though the state
court directed her to before her time to appeal expired. Dkt. No. 15-8 at 2. Nor
did she file a post-conviction motion. Instead, she filed several state habeas
petitions. Dkt. Nos. 15-1, 15-2, 15-10. The petitioner still has an available
remedy under state law—she still may file a motion under Wis. Stat. §974.06.
Because she has that remedy available to her, this court must deny her federal
petition.
This does not mean that the petitioner will never be able to file a habeas
petition in federal court. But before she can come back to federal court, the
petitioner first must file a post-conviction motion in Fond du Lac County
Circuit Court, following the procedures in Wis. Stat. §974.06, and must obtain
a ruling on that motion from the Fond du Lac County court.
The court notes that under 28 U.S.C. §2244(d)(1)(A), a petitioner must
file a federal habeas writ within one year of “the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for
seeking such review.” The Fond du Lac County Circuit Court entered judgment
on January 22, 2016. Dkt. No. 15-6 at 1. Under Wis. Stat. §808.04(1), the
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defendant had ninety (90) days within which to file an appeal—in other words,
until April 21, 2016. Once the petitioner’s post-conviction counsel withdrew,
the court extended that deadline to September 7, 2016. Dkt. No. 15 at 5. One
year from September 7, 2016 is September 7, 2017.
It appears, therefore, that the defendant has until at least September 7,
2017 to exhaust her state remedies and come back to federal court (if she
needs to do so). There are some things that “toll,” or pause, that one-year clock.
The fact that the petitioner filed a petition for habeas corpus here in federal
court, however, did not pause the clock. Duncan v. Walker, 533 U.S. 167, 18182 (2001). The petitioner may wish to do some research on whether any of her
state habeas petitions stopped the clock; regardless of whether she does that
nor not, it is probably best that the petitioner file her Wis. Stat. §974.06 motion
as soon as possible.2
IV.

OTHER MOTIONS
Over the past several months, the petitioner has filed a number of other

motions. Because the court is dismissing the petition, the court will deny the
following motions as moot:
A.

Motion to Stay Sentence (Dkt. No. 19): This motion asks for the

same relief the petitioner requests in her petition. In addition, this court does
not have the authority to “stay” a sentence imposed by a state court.

Because the court agrees with the respondent that the petitioner has not
exhausted her state remedies, it does not need to address the respondent’s
alternate ground for dismissal—procedural default.
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B.

Motion to Void and Nullify Conviction (Dkt. No. 22); Motion for

Order to Vacate Sentence (Dkt. No. 36): Again, these motions ask the court for
the same relief the petitioner requested in her federal habeas petition.
C.

Motion to Reconsider Release Pending Habeas Corpus Writ (Dkt.

No. 26): The petitioner previously filed a motion asking the court to release her
pending its decision on the habeas petition. Dkt. No. 10. The court denied that
motion, dkt. no. 16; the motion to reconsider reasserts what the petitioner has
said in numerous other filings, and gives the court no reason to change its
earlier decision.
D.

Motions for Evidentiary Hearing (Dkt. Nos. 27, 32): Because the

court is dismissing the petition due to the petitioner’s failure to exhaust her
state remedies, this court will not schedule an evidentiary hearing.
E.

Motion to Appoint Counsel (Dkt. No. 28): It is within the court’s

discretion whether to appoint counsel. Because the court is dismissing the
petition, it will not appoint counsel.
F.

Motion for Discovery (Dkt. No. 29): It is rare that a court grants a

request for discovery in a habeas petition. In this case, the request is moot
because the court is dismissing the petition.
G.

Motion for Order of Inquiry (Dkt. No. 31): The petitioner asked the

court to update her on the status of its decision. The court has now provided
the petitioner with its decision.
H.

Motion for Order to Nullify Conviction (Dkt. No. 33): This is the

same request the petitioner made in her petition.
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I.

Motion to Expedite the Disposition (Dkt. No. 34): The court has

now issued its decision.
J.

Motion to Substitute Respondent (Dkt. No. 35): The petitioner

indicates that the current warden of Taycheedah is Sarah Cooper (the
petitioner named Deanne Schaub in the petition). The current warden is Robert
Humphreys (interim); the court already has changed the name of the
respondent, so this motion is moot.
V.

CERTIFICATE OF APPEALABILITY
Under Rule 11(a) of the Rules Governing Section 2254 Cases, the court

must consider whether to issue a certificate of appealability. A court may issue
a certificate of appealability only if the applicant makes a substantial showing
of the denial of a constitutional right. See 28 U.S.C. §2253(c)(2). The standard
for making a “substantial showing” is whether “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120
S. Ct. 1595, 1603-04 (2000) (internal quotation marks omitted). “Where a plain
procedural bar is present and the district court is correct to invoke it to dispose
of the case, a reasonable jurist could not conclude either that the district court
erred in dismissing the petition or that the petitioner should be allowed to
proceed further.” Hall v. Pollard, No. 14-C-793, 2014 WL 3728083, at *2 (E.D.
Wis. July 28, 2014).

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Because the petitioner did not appropriately exhaust her remedies in the
state court before filing this petition, the court concludes that its decision to
dismiss the petitioner’s claims is neither incorrect nor debatable among jurists
of reason.
VI.

ORDER
The court GRANTS the respondent’s motion to dismiss the petition. Dkt.

No. 14.
The court DENIES WITHOUT PREJUDICE the petition for a writ of
habeas corpus, dkt. no. 1, and DECLINES to issue a certificate of appealability.
The court DENIES AS MOOT the motions at Dkt. Nos. 19, 22, 26, 27,
28, 29, 31, 32, 33, 34, 35 and 36.
The court ORDERS that this case is DISMISSED.
Dated in Milwaukee, Wisconsin this 8th day of May, 2017.

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