Winius v. Kemper

Filing 4

REPORT AND RECOMMENDATIONS signed by Magistrate Judge William E Duffin on 11/13/17. IT IS THEREFORE RECOMMENDED that Winius's petition for a writ of habeas corpus (ECF No. 1 ) be dismissed pursuant to Section 2254 Habeas Corpus Rule 4. THE COURT FURTHER RECOMMENDS that Winius not be issued a certificate of appealability. Case reassigned to Judge Pamela Pepper. (cc: all counsel, to petitioner via USPS)(mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL T. WINIUS,
Petitioner,
v.

Case No. 17-CV-1417

PAUL KEMPER,
Respondent.
REPORT AND RECOMMENDATION
Michael T. Winius is in the custody of Racine Correctional Institution pursuant to
the judgment of Outagamie County Circuit Court on April 5, 1999. (ECF No. 1 at 1-2.)
Winius was sentenced to 28 years in prison, consecutive to a previously imposed
sentence. (ECF No. 1-1 at 7.) On October 17, 2017, Winius filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Winius has consented to the
full jurisdiction of a magistrate judge. (ECF No. 3.) Therefore, the court must now
screen the petition in accordance with Rule 4 of the Rules Governing Section 2254 Cases,
which states:
If it plainly appears from 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, or to take other
action the judge may order.
Rule 4 of the Rules Governing Section 2254 Cases.
Winius’s first ground for relief alleges a substantive due process violation based
on his parole review. (ECF No. 1 at 6.) Winius alleges that there is a “secretive system”
operating between the department of corrections, parole commission, and program
review committee that is unfairly and arbitrarily preventing parole release. (Id.) He
explains that parole hearings lack substance and meaning and simply result in
deference until a prisoner reaches mandatory release/presumptive mandatory release.
(Id. at 6-7.)
Winius’s second ground for relief alleges an ex post facto violation. Specifically,
he alleges that parole has been functionally eliminated, particularly for sexual-based
offenses, and that the application of the secretive system “substantially increas[es]
Winius’[s]

exposure

to

serving

the

full

[two-thirds]

(until

mandatory

release/presumptive mandatory release) of his sentence.” (Id. at 7.)
Finally, Winius’s petition raises a claim of cruel and unusual punishment on the
grounds that the new parole commissioner made his bias clear when he stated he
would not exercise his discretion to release sex offenders eligible for parole. This claim
was not presented to the state court. As Winius describes, “[i]t is so new that Winius did
not have an opportunity to bring it before any court; further, it is only cumulative of
prior motions.” (Id. at 8.)
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Winius does not allege that he ever actually received a parole hearing and was
denied parole. Therefore, his claims are entirely prospective. Winius seeks a review of
his motion for sentence modification in order to have a speedier release once he is
eligible for parole. (ECF No. 1-2 at 1.)
“There is no right under the Federal Constitution to be conditionally released
before the expiration of a valid sentence, and the States are under no duty to offer
parole to their prisoners.” Swarthout v. Cooke, 562 U.S. 216, 220 (2011). “When, however,
a State creates a liberty interest, the Due Process Clause requires fair procedures for its
vindication – and federal courts will review the application of those constitutionally
required procedures.” Id.
In Wisconsin, persons convicted of a “serious felony” committed before
December 31, 1999 are presumptively entitled to parole after serving two-thirds of their
sentences. See Kendrick v. Hamblin, 606 Fed. Appx. 835, 837 (7th Cir. 2015) (citing Wis.
Stat. 302.11(1) (1998)). However, parole statutes do not give rise to a protectable liberty
interest when they provide that parole is discretionary, which is the case with
Wisconsin’s law authorizing presumptive release. Id. (citing Bd. of Pardons v. Allen, 482
U.S. 369, 378 (1987)). Because Winius was convicted of a “serious felony” and is
presumptively entitled to parole at the discretion of the parole commission, he has no
protectable liberty interest in release before the completion of his 28-year prison

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sentence, let alone a protectable liberty interest in release before he completes twothirds of his sentence.
Even if Winius had a protectable liberty interest in parole, there are also
significant questions as to whether he has exhausted his state court remedies as to all
claims contained in his petition and whether his petition is timely.
IT IS THEREFORE RECOMMENDED that Winius’s petition for a writ of
habeas corpus (ECF No. 1) be dismissed pursuant to Section 2254 Habeas Corpus Rule
4.
THE COURT FURTHER RECOMMENDS that Winius not be issued a certificate
of appealability.
Your attention is directed to 28 U.S.C. § 636(b)(1)(B) and (C) and Fed. R. Civ. P.
72(b)(2) whereby written objections to any recommendation herein or part thereof may
be filed within fourteen days of service of this recommendation. Objections are to be
filed in accordance with the Eastern District of Wisconsin’s electronic case filing
procedures. Failure to file a timely objection with the district court shall result in a
waiver of your right to appeal.
SO ORDERED.
Dated at Milwaukee, Wisconsin this 13th day of November, 2017.

WILLIAM E. DUFFIN
U.S. Magistrate Judge
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