Kind v. Department of Corrections

Filing 8

ORDER signed by Judge Pamela Pepper on 12/27/2016 DENYING 1 Petition for Writ of Habeas Corpus filed by Harold C Kind, Jr. and DISMISSING the case. (cc: all counsel; by US Mail to petitioner)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
HAROLD C. KIND, JR.,

Case No. 16-CV-1649-PP

Petitioner,
v.
DEPARTMENT OF CORRECTIONS,
Respondent.

ORDER DENYING PETITION WITHOUT PREJUDICE AND DISMISSING THE
CASE (DKT. NO. 1).

On April 7, 2005, petitioner Harold Kind was convicted (after pleading
guilty) in Fond du Lac County Circuit Court of repeated sexual assault of the
same child. Dkt. No. 1 at 2. He was sentenced to serve fifteen years in custody.
Id. The petition indicates that he did not file a direct appeal. Id. at 3.
Five years after his sentencing, the petitioner filed a motion asking for an
extension of time to file a notice of intent to seek post-conviction relief. See
State of Wisconsin v. Harold C. Kind, Jr., Fond du Lac County Circuit Court
Case No. #2004CF000361, at https://wcca.wicourts.gov. The court of appeals
denied that request. Id. Nonetheless, he filed a motion pursuant to Wis. Stat.
§974.06 on September 17, 2012. Id. It appears that possibly that motion
resulted in the court issuing an amended judgment and conviction on July 1,
2014. Id.
Over two years later, the petitioner filed a motion for post-conviction
relief in Fond du Lac County Circuit Court. Id. The petitioner filed that motion
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on November 30, 2016, and it remains pending. Id. Despite that fact, the
petitioner filed this petition for a writ of habeas corpus on December 12, 2016—
not quite two weeks after he filed the post-conviction motion in state court.
Dkt. No. 1. The petitioner alleges that his 2005 conviction and sentencing
violated his federal constitutional rights because (1) he had ineffective trial
counsel who misled him into taking a plea, and told him that he would be
eligible for parole after serving one-fourth of the sentence; and (2) the
Department of Corrections did not carry out the sentence as ordered by the
trial court judge. Id. at 6-7. He has paid the $5.00 federal filing fee. The case
now is before the court for screening pursuant to Rule 4 of the Rules Governing
§2254 Proceedings.
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).
It does not appear that the petitioner has exhausted his claims in state
court. He did not appeal his 2005 conviction. He waited ten years—until after
he was denied parole—to file his notice of intent to seek post-conviction relief.
He filed the current post-conviction relief motion eleven years after he was
sentenced. He has never presented his claims to the Wisconsin Court of
Appeals, or to the Wisconsin Supreme Court.

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The court also notes that 28 U.S.C. §2244(d) states that a person must
file a federal habeas petition within one year of either (a) the date on which the
state judgment against him became final “by the conclusion of direct review or
the expiration of the time for seeking such review;” or (d) “the date on which
the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.” The one-year period from the
date that the Fond du Lac County judgment and conviction became final
appears to have passed a number of years ago. It appears possible that the
petitioner’s claims may be time-barred under §2244(d).
The court will deny the petition without prejudice. This means that if the
petitioner appeals the issues he raised in the November 30, 2016 postconviction relief motion all the way to the Supreme Court, he can then file a
new habeas petition here within one year of the Wisconsin Supreme Court’s
decision. If he is not challenging the 2005 conviction and sentence and has
more recent claims to pursue, he may file a new petition explaining when those
claims arose, and what they are.
Accordingly, the court DENIES the petition WITHOUT PREJUDICE. The
court ORDERS that the case is DISMISSED.
Dated in Milwaukee, Wisconsin this 27th day of December, 2016.

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