Winius v. Kemper

Filing 5

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 1/22/2018. 4 Judge Duffin's Report and Recommendations ADOPTED. Petition DISMISSED. The court declines to issue a certificate of appealability. (cc: all counsel, via mail to Michael Winius at Prairie du Chien Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MICHAEL T. WINIUS,
Plaintiff,
v.

Case No. 17-CV-1417-pp

WARDEN PAUL KEMPER,
Defendant.

ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION (DKT. NO.
4), DISMISSING CASE AND DENYING CERTIFICATE OF APPEALABILITY

On November 13, 2017, Magistrate Judge William E. Duffin issued a
recommendation that this court deny the petitioner’s habeas petition and
decline to issue a certificate of appealability. Dkt. No. 4. Judge Duffin advised
the petitioner that if he objected to Judge Duffin’s recommendation, he had to
file his objection within fourteen days of the date the petitioner was served with
recommendation. It has been over two months, and the court has not received
an objection from the petitioner.
The court notes that at the time the petitioner filed his federal case, he
was incarcerated at the Racine Correctional Institution. Dkt. No. 1. The
petitioner never has notified the court that he has been transferred. A review of
the Department of Corrections’ inmate locator web site, however, indicates that
the petitioner now is incarcerated at the Prairie du Chien Correctional
Institution. See https://appsdoc.wi.gov/lop/detail.do. The site shows that the
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defendant was at RCI until December 18, 2017—a month after Judge Duffin
issued his report and recommendation. On that day, the petitioner was
transferred to Dodge Correctional, where he stayed until he was transferred to
Pairie du Chien on December 20, 2017.
The court mailed Judge Duffin’s report and recommendation to the
petitioner at RCI on November 14, 2017. The petitioner was not transferred to
Dodge until thirty-four days later—sufficient time for him to receive the report,
and to prepare a response.
Under Fed. R. Civ. P. 72(b), if a party does not object to a magistrate
judge’s report and recommendation, the district court reviews the magistrate
judge’s recommendation for clear error. Fed. R. Civ. P. 72(b); Johnson v. Zema
Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999) (citations omitted). This
court must decide only whether Judge Duffin’s report and recommendation are
clearly erroneous. The court concludes that they are not.
The petitioner alleges a substantive due process violation based on his
parole review, a violation of the ex post facto clause and cruel and unusual
punishment. All of these claims are based on his belief that the Wisconsin
parole system is defective. He anticipates that when the time comes for him to
have a parole hearing, it will be unfair and biased against him, because the
parole commissioner has indicated that there will be no parole granted sex
offenders. Judge Duffin noted that the petitioner has not alleged that he has
received a parole hearing and denied parole; he appears to be trying to address
a problem that has not yet arisen. Dkt. No. 4 at 3. Judge Duffin also explained
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that inmates do not have a federal constitutional right to be released before
their sentences expire, unless the state has created such a right. In Wisconsin,
there is a presumptive entitlement to release, but no guaranteed right to parole.
Id. at 3. Finally, Judge Duffin noted that the petitioner had conceded that he
had not presented this claim to any state court, which raised a question of
whether he had exhausted his state remedies and whether his habeas petition
was untimely. Id. at 4.
The court finds that the Judge Duffin’s legal conclusions, and his
recommendation that this court dismiss the plaintiff’s petition, were not clearly
erroneous.
The court ADOPTS the recommendation of the magistrate judge that the
petition be dismissed and a certificate of appealability be denied. Dkt. No. 4.
The court ORDERS that this case is DISMISSED. The court DECLINES
to issue a certificate of appealability. The clerk will enter judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within thirty (30) days of the entry of
judgment. See Fed. R. of App P. 3, 4. This court may extend this deadline if a
party timely requests an extension and shows good cause or excusable neglect
for not being able to meet the thirty-day deadline. See Fed. R. App. P. 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
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Rule 59(e) must be filed within twenty-eight (28) days of the entry of
judgment. The court cannon extend this deadline. See Fed. R. Civ. P. 6(b)(2).
Any motion under Rule 60(b) must be filed within a reasonable time, generally
no more than one year after the entry of judgment. The court cannot extend
this deadline. See Fed. R. Civ. P. 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 22nd day of January, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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