Lopez v. United States of America

Filing 7

ORDER signed by Judge Lynn Adelman on 8/14/17 that the recommendation (R. 5 ) is adopted, and this case is DISMISSED. The Clerk shall enter judgment accordingly. (cc: all counsel, petitioner) (gc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ROBERTO I. LOPEZ
Petitioner,
v.

Case No. 17-C-527

UNITED STATES OF AMERICA,
Respondent.

ORDER
Petitioner Roberto Lopez, a Wisconsin state prisoner, filed this pro se action under 28
U.S.C. § 2255 challenging a sentence imposed in Milwaukee County Circuit Court in 2007. (R.
1 at 1.)

On July 20, 2017, the magistrate judge to whom the matter was assigned

recommended that this action be dismissed, noting that § 2255 is available to federal prisoners
only.1 (R. 5.) The magistrate judge explained that state prisoners may challenge their
sentences by filing a petition under 28 U.S.C. § 2254 and noted that petitioner had indeed
(also) filed such an action. Lopez v. Dittmann, Case No. 17-C-528 (E.D. Wis.).2 The
magistrate judge further explained that petitioner could object to the recommendation within
14 days.
On August 2, 2017, petitioner filed a document entitled “brief in support of petitioner’s
motion not to dismiss petition for a writ of habeas corpus 18 U.S.C. § 242.” (R. 6.)

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Petitioner consented to proceed before a magistrate judge (R. 3), but because the
respondent had yet not appeared (and thus did not file a consent/refusal form), the magistrate
judge could only make a recommendation. See Coleman v. Labor & Indus. Review Comm’n,
860 F.3d 461 (7th Cir. 2017).
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That case is pending before the magistrate judge.

Confusingly, the document contains the caption from the § 2254 action (Roberto I. Lopez v.
Michael A. Dittmann) but uses the number assigned to this case (17-CV-527). The clerk’s
office docketed the paper as an objection to the recommendation in Case No. 17-CV-527.
Construing the paper liberally, see Frazier v. Varga, 843 F.3d 258, 262 (7th Cir. 2016), I will
treat it has such.
The objection argues the merits of petitioner’s challenges to his state court conviction
and sentence, but it does not address the magistrate judge’s conclusion that such claims may
not be brought under 28 U.S.C. § 2255. That conclusion is plainly correct. See, e.g.,
Magwood v. Patterson, 561 U.S. 320, 333 (2010); Williams v. Suffolk Circuit Court, 580 Fed.
Appx. 166 (4th Cir. 2014).
THEREFORE, IT IS ORDERED that the recommendation (R. 5) is adopted, and this
case is DISMISSED. The Clerk shall enter judgment accordingly. Because jurists of reason
would not debate the correctness of this procedural ruling, see Slack v. McDaniel, 529 U.S.
473, 483-84 (2000), I decline to issue a certificate of appealability. See 28 U.S.C. § 2253.
Dated at Milwaukee, Wisconsin, this 14th day of August, 2017.
/s Lynn Adelman
LYNN ADELMAN
District Judge

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