Johnson v. Kemper

Filing 5

ORDER signed by Judge Pamela Pepper on 6/22/2017. Petitioner may proceed on the claims in his habeas petition. Respondent shall answer or otherwise respond within 60 days. Briefing schedule ordered by the court-see order for details. (cc: all counsel, via mail to Terrance Johnson at Oakhill Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRANCE L. JOHNSON,

Case No. 16-CV-1593-PP

Petitioner,
v.
WARDEN DOUGLAS PERCY,
Respondent.
ORDER SCREENING §2254 HABEAS CORPUS PETITION (DKT. NO. 1), AND
ORDERING THE RESPONDENT TO ANSWER OR OTHERWISE RESPOND
Terrance L. Johnson, who is proceeding without a lawyer, filed a petition
for a writ of habeas corpus under 28 U.S.C. §2254. Dkt. No. 1. He has paid the
$5.00 filing fee. The case is before the court for screening under Rule 4 of the
Rules Governing §2254 Proceedings.
I.

BACKGROUND
In Milwaukee County Circuit Court, a jury convicted the petitioner of

four counts of uttering a forgery, six counts of identity theft and three counts of
theft by fraud. Dkt. No. 1 at 1.1 At sentencing, the state recommended a
sentence of ten years of initial confinement, followed by ten years of extended
supervision. Dkt. No. 1-3 at 15. After going through the history of the case and
the petitioner’s history, Milwaukee County Circuit Court Judge David A.
Hansher said that based on all of that information, his evaluation of the case
State of Wisconsin v. Terrance L. Johnson, Case No. 2011CF001601, available
at https://wcca.wicourts.gov.
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was that the defendant “deserved approximately 10 years overall of initial
confinement and a period of extended supervision.” Id. at 34. Judge Hansher
told the defendant that the state’s recommendation was in line with what he’d
concluded, and that the state’s recommendation was “more than fair and
equitable” and “a bit lighter than what I was thinking of.” Id. He concluded by
saying that he was going to follow the state’s recommendation. Id. at 35.
Judge Hansher then imposed specific sentences on each count. He
imposed the following sentences per count:
Count One:

One year of confinement.

Count Two:

Twelve months (one year) of confinement, to run
concurrently to the sentence imposed on Count One.

Count Three:

One year of confinement.

Count Four:

One year of confinement (apparently, concurrent to
Count Three, but consecutive to Count One, id. at 36).

Count Five:

Three years of confinement, concurrent to the
sentences imposed for Counts Seven, Nine and Eleven.

Count Six:

Three years of confinement, consecutive to the
sentence in Count One.

Count Seven:

Five years of confinement, consecutive to the sentence
in Count One.

Count Eight:

Three years of confinement concurrent to the sentence
in Count Six, but consecutive to the sentence in Count
One.

Count Nine:

Five years of confinement, concurrent to the sentence
in Count Seven, but consecutive to the sentence in
Count One.

Count Ten:

Three years of confinement, concurrent to the
sentences in Counts Six and Eight, but consecutive to
the sentence in Count One.
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Count Eleven:

Five years of confinement, concurrent to the sentences
in Counts Seven and Nine, but consecutive to the
sentence in Count One.

Count Twelve:

Three years of confinement, concurrent to the
sentences in Counts Six, Eight and Ten, but
consecutive to the sentence in Count One.

Count Thirteen:

Three years of confinement, concurrent to the
sentences in Counts Six, Eight, Ten and Twelve, but
consecutive to the sentence in Count One.

Id. at 34 through 41.
At various points during the sentencing hearing, Judge Hansher
questioned the prosecutor, or even questioned himself, about whether a
sentence on a particular count ought to be consecutive or concurrent to
sentences on other counts. He appears to have viewed the counts in groups—
Counts One and Two as one group, Counts Three and Four as another, Counts
Seven, Nine, and Eleven as a third, and Counts Five, Six, Eight, Ten, Twelve
and Thirteen as a fourth. He appears to have been trying to impose a sentence
of one year on the first group, one year consecutive on the second group, five
years consecutive on the third group, and three years consecutive on the fourth
group, for a total of ten years of confinement. But because he was proceeding
count by count (and, at points, was interrupted by the clerk’s phone ringing, or
by the clerk stopping him to ask him to repeat or clarify), the transcript does
not read so clearly.
For example, when Judge Hansher reached Count Two, he said that he
was imposing a one-year sentence in Count Two to run “consecutive” to the
sentence imposed on Count One. He then asked, “Isn’t that what the state was
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recommending?” The prosecutor replied, “The state was recommending that
they be concurrent to count one, consecutive to all other counts.” Judge
Hansher replied, “Isn’t that the same thing if I make count two consecutive to
count one?” The prosecutor answered, “I guess it would be.” Judge Hansher
then said, “Okay. So that’s what my intent is.” Dkt. No. 1-3 at 35. Toward the
end of the sentencing, however, when Judge Hansher was in the process of
imposing the five-year concurrent sentences on Counts Seven, Nine and
Eleven, the state pointed out that perhaps Judge Hansher had imposed a
sentence that exceeded ten years of confinement. The following exchange
occurred:
DEFENDANT’S STAND-BY COUNSEL: If counts one and two are
consecutive –
PROSECUTOR: I think –
THE COURT: That’s six.
PROSECUTOR:
then –

You made count two concurrent to count one,

THE COURT: Count two is – Right. Count two is concurrent to
count one. It wasn’t consecutive.
THE CLERK: I have consecutive.
THE COURT: Hold on. Let me see.
PROSECUTOR: You misspoke I think.
THE COURT: Then I’m wrong. Count two is concurrent to count
one. It was not consecutive. I agree with the state. I said
consecutive.
THE CLERK: Okay.
STAND-BY COUNSEL: It should be concurrent, though, right?
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THE COURT: Count two.
STAND-BY COUNSEL: Yes.
THE COURT: Right. Concurrent to count one.
Id. at 40-41. Once that was settled, the court stated, “The total should come
out to 10 years initial confinement, 10 years of extended supervision. That’s
the intent of the court of the overall sentencing which is extremely complicated
in this case. The most complicated sentencing I’ve had.” Id. at 41.
The court issued a written judgment on June 8, 2012. Dkt. No. 1-1. It
read as follows:
Ct.
Sentence
Type
Concurrent with/Consecutive To Comments
1 State prison Consecutive Consecutive to all other counts. Credit for 365
days.
2 State prison Concurrent Concurrent to count one.
3 State prison Concurrent Concurrent to count four, but consecutive to
count one. Credit for 61 days.
4 State prison Concurrent Concurrent to count three, but consecutive to
count one.
5 State prison Concurrent Concurrent to counts seven, nine and 11, but
consecutive to count one.
6 State prison Concurrent AS TO COUNTS SIX, EIGHT, TEN AND 12
EACH: Concurrent to each other, but
consecutive to count one.
7 State prison Concurrent AS TO COUNTS SEVEN, NINE AND 11:
Concurrent to each other, but consecutive
to count one.
8 State prison Concurrent See count six.
9 State prison Concurrent See count seven.
10 State prison Concurrent See count six.
11 State prison Concurrent See count seven.
12 State prison Concurrent See count six.
13 State prison Concurrent Concurrent to counts six, eight, 10 and 12,
but consecutive to count one.
Id. at 1.

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The words “consecutive to all other counts” in relation to Count One
made it appear as though Judge Hansher had intended each of the sentences
imposed on Counts Two through Thirteen to run consecutively to the sentence
imposed in Count One, resulting in a sentence of far more than ten years. It
appears that the Department of Corrections caught this, because the on-line
docket for the Milwaukee County Circuit Court shows that on July 27, 2012,
the court received a letter from the Department of Corrections, “seeking
clarification about sentence structure as to counts one and two.” State v.
Johnson, Case no. 2011CF001601, available at https://wcca.wicourts.gov.
On August 9, 2012, the court issued an amended judgment, which stated as to
the sentence imposed on Count One, “ORDER dated 8-7-2012, removes
language stating ‘consecutive to all other counts.” Credit 365 days.” Id. at 2.
Neither written judgment states that Judge Hansher intended to impose a total
sentence of ten years of confinement.
The petitioner asserts in his petition that Judge Hansher did not follow
the state’s recommendation to impose a ten-year sentence, and that he instead
imposed a “valid sentence of 6 years initial confinement 6 years extended
supervision with 426 days sentence credit.” Dkt. No. 1 at 2. It is not clear how
the petitioner came up with this calculation. At any rate, the petitioner
indicates that after he had served four years and ten months of confinement,
the Department of Corrections lowered his security classification to community
custody, and let him work in the community at a McDonald’s in Union Grove,
Wisconsin. Dkt. No. 1 at 2. The petitioner indicates that the Department of
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Corrections looked at the actual sentencing transcript, saw Judge Hansher’s
statement that he intended to impose a sentence of ten years, and concluded
that that sentence conflicted with the written judgment—which, the plaintiff
indicates, the Department of Corrections believed reflected a maximum
sentence of twelve years. Id.
The petitioner says that “at the direction of the Department of
Corrections,” on February 2, 2016, he filed a pro se request in Milwaukee
County Circuit Court to amend the judgment of conviction to reflect his
understanding of the court’s intent to impose a ten-year total sentence
(confinement and extended supervision). Id.; but see Dkt. No. 1-3 at 41 (excerpt
from the sentencing transcript: “THE COURT: The total should come out to 10
years initial confinement, 10 years of extended supervision.”)). See also, State
v. Johnson, Case No. 2011CF001061, dkt. entry 44. On February 3, 2016,
Circuit Court Judge Dennis R. Cimpl issued an order amending the judgment
of conviction. Dkt. No. 1-2.
Judge Cimple said that, while Judge Hansher had made it clear at the
sentencing hearing that he intended to impose a sentence of ten years of
confinement, “[t]he Department of Corrections has informed the court that
under the June 9, 20152 judgment, counts three through thirteen are running
concurrently with each other and consecutive to count one, which results in a
total sentence of six years of initial confinement and six years of extended
Judge Cimple appears to have been referring to another amended judgment,
issued on June 9, 2015 as the result of a June 4, 2015 order from Judge
Timothy Witkowiak. State v. Johnson, Case No. 2011CF001061 at dkt. entry
55. The petitioner did not attach this amended judgment to his petition.
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supervision.” Id. at 2. Judge Cimple stated that this was not what Judge
Hansher had intended, and he walked through what Judge Hansher had done
at sentencing. Id. He found that while Judge Hansher had not explicitly
articulated the grouping of the counts in such a way that the math added up to
ten years, Judge Hansher “could not have been more clear” about his intent to
impose a term of ten years of confinement. Accordingly, Judge Cimple amended
the judgment in a way that resulted in a sentence of ten years of confinement.
Id. at 3.
The petitioner appealed.3 On September 28, 2016, the court of appeals
affirmed the trial court’s order denying post-conviction relief and its order
denying reconsideration. Id. A few days later, the petitioner filed an additional
motion for relief with the court of appeals, which it denied on October 6, 2016.
Id. The petitioner attempted to file a petition for review with the Wisconsin
Supreme Court, but the court refused to accept the petition without the filing
fee; the petitioner asserts that his conditions of confinement prevented him
from filing a timely, notarized fee waiver request. Dkt. No. 1 at 4.
On November 30, 2016, the petitioner filed this federal habeas petition.
Id. at 1. He alleges that Judge Cimpl abused his discretion, and imposed a new
sentence in violation of the petitioner’s constitutional protection against Double
Jeopardy. Id. at 4-5, 7.

State of Wisconsin v. Terrance L. Johnson, Case. No. 2015AP000673, Wis. Ct.
App, available at https://wscca.wicourts.gov/.
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II.

THE PETITIONER MAY PROCEED ON THE CLAIMS IN HIS PETITION.
The court now will review, or “screen” the petition. Rule 4 of the Rules

Governing §2254 Proceedings says:
If it plainly appears from the face of 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. If the petition is not dismissed, the judge
must order the respondent to file an answer, motion,
or other response within a fixed time . . . .
At this stage, this court reviews the petition and attached exhibits to determine
whether the petitioner has set forth claims arising under the Constitution or
federal law that are cognizable on habeas review.
From the face of the petition, it appears that the petitioner states a
cognizable claim. Therefore the court will allow the claims in the petitioner’s
habeas case to proceed. The court notes, however, that the respondent has not
had an opportunity to weigh in; nothing in this order prevents the respondent
from arguing that the petitioner has not exhausted his claims, or that his
claims are procedurally barred. The court expresses no view on the merits of
the petitioner’s claim; the court finds only that the petitioner has stated claims
of a type that are generally cognizable on habeas review.
III.

CONCLUSION
The court ORDERS that the petitioner may proceed on the claims in his

habeas petition. Dkt. No. 1.
The court ORDERS that within sixty (60) days of the date of this order,
the respondent shall ANSWER OR OTHERWISE RESPOND to the petition,
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complying with Rule 5 of the Rules Governing §2254 Cases, and showing
cause, if any, why the writ should not issue.
The court ORDERS that the parties shall comply with the following
schedule for filing briefs on the merits of the petitioner’s claims:
(1) within forty-five (45) days after the respondent files his answer, the
petitioner shall file a brief in support of his petition;
(2) within forty-five (45) days after the petitioner files his initial brief,
the respondent shall file his brief in opposition; and
(3) within thirty (30) days after the respondent files his opposition brief,
the petitioner may file a reply brief, if he chooses to do so.
If, instead of filing an answer, the respondent files a dispositive motion,
the respondent must include a brief and other relevant materials in support of
the motion. The petitioner shall file a brief in opposition to that motion within
forty-five (45) days of the date the respondent files the motion. If the
respondent chooses to file a reply brief, he shall do so within thirty (30) days
of the date the petitioner files the opposition brief.
Under Civil Local Rule 7(f), briefs in support of or in opposition to the
habeas petition and any dispositive motions shall not exceed thirty (30) pages,
and reply briefs may not exceed fifteen (15) pages, not counting any
statements of facts, exhibits and affidavits.
Under the Memorandum of Understanding between the Attorney General
and this court, the Attorney General for the State of Wisconsin and Paul

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Kemper, Warden of the Racine Correctional Institution will receive copies of the
petition and this order electronically.
Dated in Milwaukee, Wisconsin this 22nd day of June, 2017.
BY THE COURT:

________________________________________________
HON. PAMELA PEPPER
United States District Judge

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