Kerr v. Schmidt

Filing 7

ORDER signed by Judge Pamela Pepper on 1/11/2017 DENYING 2 Petitioner's motion for leave to proceed without prepayment of the filing fee; DENYING 1 Petition; and DISMISSING this case. (cc: all counsel; by US Mail to petitioner) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ZACKORY JOHN KERR,

Case No. 16-CV-1614-PP

Petitioner,
v.
DALE SCHMIDT,
Respondent.

ORDER DENYING PETITION WITHOUT PREJUDICE (DKT. NO. 1), DENYING
AS MOOT THE PETITIONER’S MOTION TO PROCEED IN FORMA PAUPERIS
(DKT. NO. 2) AND DISMISSING THE CASE

Petitioner Zackory John Kerr, 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 also
asked the court for leave to proceed without paying the filing fee. Dkt. No. 2.
The case now is before the court for screening under Rule 4 of the Rules
Governing §2254 Proceedings.
I.

BACKGROUND
On December 13, 1994, the petitioner was convicted in Milwaukee

County Circuit Court, Case No. 1994CF943412, of second degree sexual
assault and attempted second degree sexual assault, after entering an Alford
plea.1 Dkt. No. 1 at 2. The state court sentenced him to serve five years in
custody, with three years of probation to be served consecutively. Id. In the
Under North Carolina v. Alford, 400 U.S. 25 (1970), “an individual accused of
crime may voluntarily, knowingly, and understandingly consent to the
imposition of a prison sentence even if he is unwilling or unable to admit his
participation in the acts constituting the crime.” Id. at 37.
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section of the petition which asks whether the petitioner appealed his
conviction, the petitioner wrote, “unsure.” Id. at 3. The petitioner attached to
the petition a copy of a print-out of the history of the state-court case
(presumably from CCAP). Dkt. No. 1-1 at 12-14. According to that history, the
petitioner did not file an appeal; rather, he filed a motion for post-conviction
relief in the Milwaukee County Circuit Court some three and a half years after
his sentencing. Id. at 12. (The petitioner did not list this motion in Section III of
his petition. Id. at 4.) The circuit court denied the motion, and the Wisconsin
Court of Appeals affirmed that decision. Id. The petitioner did not appeal the
Wisconsin Court of Appeals’ decision to the Wisconsin Supreme Court. Id.
On December 6, 2016, the petitioner filed his habeas petition in federal
court, alleging four grounds. Dkt. No. 1. He alleges that: (1) his conviction was
a fundamental miscarriage of justice; (2) he is actually innocent; (3) the
conviction and sentencing violated his federal constitutional rights under the
Fifth Amendment; and (4) his trial counsel was ineffective, in violation of the
Sixth Amendment. Id.at 6-9. For each of these causes of action, the petition
asked, “If you did not exhaust your state remedies on Ground X, explain why.”
The petitioner responded, “I don’t have records or transcripts to honestly say!”
Id. at 7.
II.

THE COURT MUST DISMISS THE PETITION BECAUSE THE
PETITIONER DID NOT EXHAUST HIS STATE COURT REMEDIES.
The court now will review, or “screen” the petition. Rule 4 of the Rules

Governing §2254 Proceedings says:

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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, the court reviews the petition and its exhibits to determine if the
petitioner has set forth claims arising under the Constitution or federal law
that are cognizable on habeas review, exhausted in the state court system, and
not procedurally defaulted.
Pursuant to 28 U.S.C. §2254(b)(1)(A), federal courts cannot grant habeas
relief unless the petitioner exhausts the available state court remedies.
Generally, courts consider a claim exhausted 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).
A review of the documents the petitioner submitted shows that the
petitioner did not exhaust his claims in state court, either through a direct
appeal or through Wisconsin’s post-conviction motion procedure. The case
history (docket report) that the petitioner attached to his petition shows that he
did not file an appeal after sentencing. He entered his plea on December 13,
1994, and the state court imposed sentence on January 27, 1995. There was
no further activity in the case until June 19, 1998, when he filed his postconviction motion.
Under Wis. Stat. §809.30(2)(b), someone who wants to appeal a criminal
conviction or sentence has to file a notice of intent to seek post-conviction relief
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within twenty (20) days of the date of “sentencing or final adjudication.” The
petitioner’s sentencing took place on January 27, 1995—that means that he
had to file that notice no later than February 16, 1995. But the case history
report shows that the petitioner didn’t file anything by February 16, 1995, or
even in the next year or two. Not only did the petitioner fail to contest his
conviction and sentence through a complete round of the Wisconsin appellate
review process—he didn’t contest it with any Wisconsin appellate court.
The petitioner did file a post-conviction motion on June 19, 1998—three
and a half years after his sentencing. The court does not know, but assumes
that the petitioner filed this motion under Wis. Stat. §974.06(1), which allows a
prisoner serving a criminal sentence to file a motion claiming that his
conviction or sentence was invalid. That statute allows a prisoner to file such a
motion at any time “[a]fter the time for appeal or postconviction remedy
provided in s. 974.02 has expired . . . .” The petitioner did not attach his postconviction motion, so the court does not know what issues he raised in that
motion, or whether he raised in that motion any of the grounds he raises in his
habeas petition.
The Milwaukee County Circuit Court denied that motion six days later.
The court does not know the basis for the circuit court judge’s denial of the
motion. The Wisconsin Circuit Court Access Program shows that the petitioner
filed his notice of appeal from that decision on July 16, 1998, and that the
court of appeals summarily affirmed the circuit court’s decision on September
1, 1999. State v. Zackory Kerr, Appeal No. 1998AP002057-CR, found at
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https://wscca/wicourts.gov. The circuit court and court of appeals dockets
show that the petitioner did not seek review by the Wisconsin Supreme Court
of the Wisconsin Court of Appeals’ decision. Dkt. No. 1-1 at 12-14; id. In order
to have fully exhausted his remedies on the post-conviction motion, he would
have had to seek Wisconsin Supreme Court review.
Thus, the records show that the petitioner did not exhaust his remedies
in state court. Under 28 U.S.C. §2254(b)(1)(A), the court cannot grant his
habeas petition. The court must dismiss the petition.
The court will not issue a certificate of appealabililty. A certificate of
appealability may issue only if the petitioner makes a substantial showing of
the denial of a constitutional right. 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
(internal quotation marks omitted) (citing Barefoot v. Estelle, 463 U.S. 880, 893
& n.4 (1983)). The question of whether the petitioner failed to exhaust his state
court remedies does not meet this standard,2 and the court declines to issue a

The court understands that the petition alleges that the petitioner was
deprived of his Fifth and Sixth Amendment rights. But the court does not
decide those issues (it cannot)—it decides only that the petitioner did not
exhaust his remedies on those claims.
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certificate of appealability.
III.

CONCLUSION

For the reasons explained in this order, the court DENIES WITHOUT
PREJUDICE the petition, dkt. no. 1, and DENIES AS MOOT the petitioner’s
motion to proceed in forma pauperis. Dkt. No. 2. The court ORDERS that the
case is DISMISSED.
Dated in Milwaukee, Wisconsin this 11th day of January, 2017.

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