Schuenke v. United States of America et al

Filing 6

ORDER signed by Judge Lynn Adelman on 03/12/2018. IT IS ORDERED that the complaint and this action are DISMISSED for failure to state a claim on which relief may be granted. The Clerk of Court shall enter final judgment. (cc: all counsel, Plaintiff)(lls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LLOYD T. SCHUENKE,
Plaintiff,
v.

Case No. 18-C-0153

UNITED STATES OF AMERICA, et al.,
Defendant.

DECISION AND ORDER
Lloyd Schuenke has filed a complaint in this court under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). He sues the
United States of America, President Donald Trump, the U.S. Senate, and the U.S.
House of Representatives. He alleges that the part of the Antiterrorism and Effective
Death Penalty Act of 1996 creating the one-year period of limitation on habeas petitions
filed by persons in custody pursuant to a state-court judgment, 28 U.S.C. § 2244(d), is
unconstitutional. He requests an injunction against the enforcement of § 2244(d), an
order reinstating all habeas petitions that any court ever dismissed under § 2244(d), and
damages.
Obviously, there are a number of problems with this suit. But perhaps the most
fundamental is that Schuenke does not in this action seek relief under 28 U.S.C.
§ 2254. Because § 2244(d) is nothing more than a defense to a petition for a writ of
habeas corpus under § 2254, it is not possible to bring a challenge to the
constitutionality of § 2244(d) outside of a § 2254 petition. The only possible remedy
would be for the court to disregard § 2244(d) and consider the habeas petition on the
merits. No person or entity could be liable for damages or injunctive relief. Therefore,

Schuenke has not stated a claim on which relief may be granted, and I will dismiss this
suit under 28 U.S.C. § 1915(e)(2)(B).
For the reasons stated, IT IS ORDERED that the complaint and this action are
DISMISSED for failure to state a claim on which relief may be granted. The Clerk of
Court shall enter final judgment.
Dated at Milwaukee, Wisconsin, this 12th day of March, 2018.

s/Lynn Adelman___________
LYNN ADELMAN
District Judge

2