Lasecki v. Verheyan

Filing 6

ORDER ADOPTING and MODIFYING REPORT AND RECOMMENDATIONS for 5 Report and Recommendations. The petition is dismissed without prejudice and a certificate of appealability is denied. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TROY ROBERT LASECKI,
Petitioner,
v.

Case No. 18-C-506

SHERIFF DOUG VERHEYAN,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING
HABEAS PETITION

Petitioner Troy Lasecki, who is proceeding without the assistance of counsel, filed this
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 30, 2018. This matter
was randomly assigned to Magistrate Judge William E. Duffin. On April 6, 2018, Magistrate Judge
Duffin issued a Report and Recommendation screening the habeas petition pursuant to Rule 4 of the
Rules Governing Section 2254 Cases and recommending that the habeas petition be dismissed for
failure to exhaust state remedies, which Lasecki admitted because he thought federal court would
provide a more rapid response.1 Magistrate Judge Duffin also recommended that no certificate of
appealability be issued. Lasecki was given two weeks to object to the recommendation. The time
to respond has lapsed and no objection has been received. Because no objection was made, I review
Magistrate Judge Duffin’s report for clear error. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739
(7th Cir. 1999). Upon review, I find no clear error in either the report or the recommendation;

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Because not all parties have filed a consent to magistrate judge jurisdiction, Magistrate
Judge Duffin could not dismiss the petition. See Coleman v. Labor & Indus. Review Comm’n, 860
F.3d 461 (7th Cir. 2017).

however, I will modify Magistrate Judge Duffin’s recommendation of dismissal to be dismissal
without prejudice for failure to exhaust state court remedies.
Upon entering an order denying habeas relief, I must issue or deny a certificate of
appealability. See Rule 11 of the Rules Governing Section 2254 Cases. A district could will issue
a certificate of appealability for a habeas petition decided on procedural grounds, such as failure to
exhaust state remedies, “when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petitioner states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). No reasonable jurist would find it debatable
that Lasecki did not exhaust his state remedies. As such, I will adopt Magistrate Judge Duffin’s
recommendation to deny a certificate of appealability.
IT IS THEREFORE ORDERED that the court MODIFIES and ADOPTS Magistrate
Judge Duffin’s Report and Recommendation (ECF No. 5) and Petitioner’s habeas petition will be
DISMISSED WITHOUT PREJUDICE.
IT IS ALSO ORDERED that a certificate of appealability is DENIED.
The Clerk will enter judgment accordingly.
Dated this 11th

day of May, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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