Moseley v. Kemper

Filing 4

ORDER signed by Judge Pamela Pepper on 6/27/2018. Petitioner may proceed on claims in his habeas petition. Respondent shall answer or otherwise respond to petition within 60 days. See order for briefing schedule and allowable page leng th. Within 21 days Wisconsin DOJ will inform the court if it will accept service on behalf of respondent; if yes it will provide pleadings to respondent, if no it will provide the court reason for not accepting service and last known address of respondent. (cc: all counsel, via mail to Timothy Moseley at Racine Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

TIMOTHY D. MOSELEY,
Petitioner,
v.

Case No. 18-cv-291-pp

PAUL S. KEMPER,
Respondent.

ORDER SCREENING HABEAS PETITION (DKT. NO. 1) AND REQUIRING
THE RESPONDENT TO FILE AN ANSWER OR OTHERWISE RESPOND

On February 2, 2018, Timothy D. Moseley, who is representing himself,
filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his
March 27, 2013 conviction in Columbia County Circuit Court for one count of
second-degree sexual assault of an intoxicated victim and twelve counts of
capturing an image of nudity. Dkt. No. 1. He has paid the $5.00 filing fee. This
order screens the petition under Rule 4 of the Rules Governing Section 2254
Cases. Because it does not plainly appear from the face of the petition that the
petitioner is not entitled to relief, the court will order the respondent to answer
or otherwise respond.
I.

Background
On November 14, 2012, a jury convicted the petitioner of one count of

second-degree sexual assault of an intoxicated victim and twelve counts of
capturing an image of nudity. Dkt. No. 1 at 2; State v. Moseley, Case No.
2011CF000412, Columbia County Circuit Court, located at
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https://wcca.wicourts.gov. The petitioner says that the court entered judgment
on March 27, 2013, id. at 1, but the electronic docket shows that the court
entered the original judgment on March 5, 2013, and an amended judgment
on March 27, 2013. State v. Moseley, Case No. 2011CF000412 (Columbia
County Circuit Court), located at https://wcca.wiscourts.gov.
After obtaining numerous extensions of time, the petitioner filed a direct
appeal on August 31, 2015. Id. The Wisconsin Court of Appeals affirmed the
conviction on July 22, 2016. Dkt. No. 1 at 2; State v. Moseley, Case No.
2011CF000412 (Columbia County Circuit Court), located at
https://wcca.wiscourts.gov. The Wisconsin Supreme Court denied his petition
for review on February 16, 2017. Id. The petitioner filed his federal habeas
petition on February 23, 2018. Dkt. No. 1.
II.

Rule 4 Screening
A.

Standard

Rule 4 of the Rules Governing §2254 Proceedings provides:
If it plainly appears form the face of 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.
A court allows a habeas petition to proceed unless it is clear to the
court that the petitioner is not entitled to relief in the district court. At the
screening stage, the court expresses no view of the merits of any of the
petitioner’s claims. Rather, the court reviews the petition and exhibits to
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determine whether the petitioner alleges he is in custody in violation of the
“Constitution or laws or treaties of the United States.” 28 U.S.C. §2254(a). If
the state court denied the petition on the merits, this court can grant the
petition only if the petitioner is in custody as a result of: (1) “a decision that
was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the United States Supreme Court;” or (2) “a
decision that was based on an unreasonable application determination of the
facts in light of the evidence presented in the state court proceeding.” 28 U.S.C.
§2254(d).
The court also considers whether the petitioner filed within the
limitations period, exhausted his state court remedies and avoided procedural
default. Generally, a state prisoner must file his habeas petition within one
year of the judgment becoming final. 28 U.S.C. §2254(d)(1)(A). In addition, the
state prisoner must exhaust the remedies available in the state courts before
the district court may consider the merits of his federal petition. 28 U.S.C.
§2254(b)(1)(A). If the district court discovers that the petitioner has included an
unexhausted claim, the petitioner either must return to state court to exhaust
the claim or amend his petition to present only the exhausted claims. Rose v.
Lundy, 455 U.S. 509, 510 (1982).
Finally, even if a petitioner has exhausted a claim, the district court may
still be barred from considering the claim if the petitioner failed to raise the
claim in the state’s highest court in a timely fashion or in the manner

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prescribed by the state’s procedural laws. See O'Sullivan v. Boerckel, 526 U.S.
838, 848 (1999); Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000).
B.

The Petition

The petitioner alleges three grounds for relief: (1) double jeopardy
(arguing that he was prosecuted for a crime for which he had already been
convicted in another county); (2) double jeopardy (arguing that he was
prosecuted for a crime for which he had been acquitted in another county); and
(3) prosecution in violation of the Constitution (arguing that two of the
Wisconsin statutes under which he was convicted or sentenced are
unconstitutional as applied to him). Dkt. No. 1 at 3-8.
The petitioner’s double jeopardy arguments both stem from the charged
offenses of capturing an image of nudity. Id. at 5-6. First, he argues that he
was prosecuted for capturing a particular image, despite the fact that he’d been
convicted in a previous case in another county for possessing two of the same
images. Id. at 5. Second, he argues that he was prosecuted for capturing
another image, despite the fact that he’d been acquitted in a previous case in
another county for possessing the same image. Id. at 6.
The petitioner’s third argument is that Wis. Stat. §§942.09(1)(a) (which
defines “captures a representation”) and 942.09(2)(am) (which prohibits
capturing or possessing certain types of images) are unconstitutional as
applied to him. Id. at 8. Specifically, he argues that the Wisconsin legislature
enacted these statutes prior to the advent of digital photograph technology, and
that these particular statutes have failed to keep up with that technology. Id.
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The petitioner has stated cognizable constitutional claims.
There is some indication that the petitioner may not have filed his federal
case within the one-year limitations period. He indicates that the Wisconsin
Supreme Court denied his petition for review on February 27, 2017, while the
electronic docket for the circuit court indicates that the Supreme Court issued
its decision on February 16, 2017, and the electronic docket for the Supreme
Court reports that remittitur took place on February 17, 2017; the petitioner
filed this case on February 23, 2018. This court does not know, without seeing
the Supreme Court’s decision, which of these dates is correct, so at this point,
the court cannot conclude that the petition is time-barred.
Finally, at this early stage, it appears that the petitioner exhausted all of
his remedies for the three claims presented at the state level. So the court
cannot say that it plainly appears from the face of the petition that the
petitioner is not entitled to relief on the second and third grounds for relief
alleged.
III.

Conclusion
The court ORDERS that the petitioner may proceed on the claims in his

habeas petition.
The court ORDERS that within sixty days of the date of this order, the
respondent shall answer or otherwise respond to the petition, complying with
Rule 5 of the Rules Governing §2254 Cases, and showing cause, if any, why the
writ should not issue.

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The court ORDERS that the parties must comply with the following
schedule for filing briefs on the merits of the petitioner’s claims:
(1) the petitioner (Mr. Moseley) has forty-five days after the respondent
files his answer to file a brief in support of his petition;
(2) the respondent (Warden Kemper) has forty-five days after the
petitioner files his initial brief to file the respondent’s brief in opposition; and
(3) the petitioner has thirty days after the respondent files his opposition
brief to file a reply brief, if the petitioner chooses to file such a brief.
If, instead of filing an answer, the respondent (Warden Kemper) files a
dispositive motion, the respondent must include a brief and other relevant
materials in support of the motion. The petitioner (Mr. Moseley) then must file
a brief in opposition to that motion within forty-five days of the date the
respondent files the motion. If the respondent chooses to file a reply brief, he
must do so within thirty days of the date the petitioner files the opposition
brief.
The parties shall submit their pleadings in time for the court to receive
them by the deadlines stated above.
Under Civil Local Rule 7(f), briefs in support of or in opposition to the
habeas petition and any dispositive motions shall not exceed thirty pages and
reply briefs may not exceed fifteen pages, not counting any statements of facts,
exhibits and affidavits. The court asks the parties to double-space any typed
documents.

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Under the Memorandum of Understanding between the Wisconsin
Department of Justice and the U.S. District Clerk of Court for the Eastern
District of Wisconsin, the court will notify the Wisconsin Department of Justice
(through the Criminal Appeals Unit Director and lead secretary) of this order
via Notice of Electronic Filing (NEF). The Department of Justice will inform the
court within twenty-one days from the date of the NEF whether the Department
of Justice will accept service on behalf of the respondent (and, if not, the
reason for not accepting service and the last known address of the respondent).
The Department of Justice will provide the pleadings to the respondent on
whose behalf the Department has agreed to accept service of process.
Dated in Milwaukee, Wisconsin this 27th day of June, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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