Puchner v. Sheriff Severson

Filing 11

ORDER signed by Judge J P Stadtmueller on 11/16/2021. IT IS ORDERED that Petitioner John D. Puchner's amended petition for writ of habeas corpus (Docket # 6 ) be and the same is hereby DENIED; IT IS FURTHER ORDERED that a certificate of appeal ability as to Petitioner John D. Puchner's petition be and the same is hereby DENIED; IT IS FURTHER ORDERED that Petitioner's motion for writ of mandamus (Docket # 9 ) and motion to add exhibits (Docket # 10 ) be and the same are hereby DENIED as moot; and IT IS FURTHER ORDERED that this action be and the same is hereby DISMISSED without prejudice. (cc: all counsel and mailed to pro se party)(rcm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN D. PUCHNER,
Petitioner,
v.
SHERIFF SEVERSON,

Case No. 21-CV-609-JPS-JPS

ORDER

Respondent.
Petitioner filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging Waukesha County Circuit Court Judge Michael
P. Maxwell’s (“Judge Maxwell”) finding Petitioner in contempt and
ordering that he be jailed. (See Docket #1). Judge Maxwell’s contempt orders
stem from Petitioner’s divorce proceedings, which began in 2019 and have
now become so protracted due to Petitioner’s prolific filings.1 Specifically,
Judge Maxwell found Petitioner in contempt of court for failing to (1) turn
over his children’s birth certificates and social security cards to opposing
counsel, (2) pay opposing counsel’s attorney’s fees, (3) retrieve documents
regarding his former wife’s autobiography, and (4) file the IRS forms
necessary for stimulus payments.2 The court ordered Petitioner to be jailed
for six months because of his failure “to provide a list of who he sent the
autobiography to.”3

In re Marriage of Puchner, 2019FA089 (Waukesha Cnty. Cir. Ct.) available at
https://wcca.wicourts.gov/caseDetail.html?caseNo=2019FA000089&countyNo=67
(last visited Nov. 13, 2021). At this juncture, there are approximately 600 docket
entries as to Petitioner’s almost three-year-old case.
2Id.
3Id.
1

Case 2:21-cv-00609-JPS Filed 11/16/21 Page 1 of 7 Document 11

On May 28, 2021, this Court issued an order screening Petitioner’s
initial petition. (Docket #5). The Court explained that the petition was
unclear and that, based on his submissions, it was unlikely that he had
exhausted his state court remedies. (Id. at 2–5). The Court gave Petitioner
twenty-one days to submit an amended petition addressing its concerns.
(Id. at 5). Now before the Court is Petitioner’s amended petition4 and his
exhibits in support of the same. (Docket #6, #6-1). Petitioner is challenging
Judge Maxwell’s alleged failure to hold a “VJH hearing”5 and “other 14th
Amendment violations.” (Docket #6 at 4). Further, he challenges “all
incarcerations – 4 sentences for alleged contempt” and notes that “2 were
by default while [he] had a heart attack and stent.” (Id.) Petitioner
represents that Judge Maxwell issued these orders on May 5 and May 20,
2021. (Id.) Notably, in his petition, he fails to describe both (1) the basis for
Judge Maxwell’s May 20, 2021 contempt orders (other than that they were
by default) and (2) Judge Maxwell’s purported other “14th amendment
violations.” (See id.)
As noted in its May 21, 2021 order, (see Docket #5 at 2), the Court first
screens a habeas petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts. This rule authorizes a
district court to conduct an initial screening of habeas corpus petitions and
to dismiss a petition summarily where “it plainly appears from the face of
Petitioner’s amended petition is on a form for a writ of habeas corpus
under 28 U.S.C. § 2241. Section 2241 is a vehicle for those in state custody, pre-trial,
to challenge constitutional violations. Because Petitioner is in state custody, posttrial, the Court analyzes his petition according to § 2254.
5Pursuant to State ex rel. V.J.H. v. C.A.B., 472 N.W.2d 839, 843 (Ct. App.
1991), “[w]hen a contemnor’s liberty interests are at risk,” to satisfy due process
“he must be given the opportunity to show the court that the failure to comply
with the purge condition was not willful and intentional.”
4

Page 2 of 7
Case 2:21-cv-00609-JPS Filed 11/16/21 Page 2 of 7 Document 11

the petition and any attached exhibits that the petitioner is not entitled to
relief.” Rule 4 provides the district court the power to dismiss both those
petitions that do not state a claim upon which relief may be granted and
those petitions that are factually frivolous. See Small v. Endicott, 998 F.2d
411, 414 (7th Cir. 1993). Upon an initial Rule 4 review of habeas petitions,
courts analyze whether the petitioner has avoided statute of limitations
bars, exhausted available state remedies, avoided procedural default, and
set forth cognizable constitutional or federal law claims.
Upon review of Petitioner’s amended petition and the exhibits
thereto, as well as the dockets associated with Petitioner’s state court cases,
the Court determines that Petitioner has failed to exhaust his state court
remedies. “A federal court may not grant a writ of habeas corpus unless the
petitioner has exhausted his state court remedies.” Boyko v. Parke, 259 F.3d
781, 788 (7th Cir. 2001) (citing 28 U.S.C. § 2254(b)(1)(A)). “The exhaustion
doctrine requires a petitioner to use all available state procedures to pursue
his claim before seeking federal habeas corpus relief.” Blanck v. Waukesha
Cnty., 48 F. Supp. 2d 859, 860 (E.D. Wis. 1999). The exhaustion requirement
also demands that a petitioner “fully and fairly present his federal claims
to the state courts,” Boyko, 259 F.3d at 788, meaning that “he must ‘place[]
both the operative facts and the controlling legal principles before the state
courts.’” Obriecht v. Bartow, No. 06-C-0253-C, 2006 WL 3246276, at *2 (W.D.
Wis. Nov. 6, 2006) (quoting Chambers v. McCaughtry, 264 F.3d 732, 737 (7th
Cir. 2001)). While courts need not apply the total exhaustion rule “with
unthinking rigidity,” they “must be faithful to the [Supreme Court’s]
mandate that the rule be “rigorously enforced.” Shears v. Israel, 712 F.2d
1220, 1222 (7th Cir. 1983) (internal quotations and citation omitted). In other
words, Petitioner must have fairly presented his claim that he was denied
Page 3 of 7
Case 2:21-cv-00609-JPS Filed 11/16/21 Page 3 of 7 Document 11

a VJH hearing in violation of the Fourteenth Amendment and his “other”
constitutional claims through one full round of state court review. See
Robinson v. Richardson, Case No. 18-cv-1566-pp, 2020 WL 128590, at *2 (E.D.
Wis. Jan 10, 2020) (internal quotations and citations omitted).
In support of his position that he has, in fact, exhausted his state
court remedies, Petitioner attaches copies of the following documents:
1.

A motion for “VJH Hearing” before the Waukesha County
Circuit Court in case 2019FA89, dated May 6, 2021, (Docket
#6-1 at 1);

2.

A motion for an emergency injunction to the Wisconsin Court
of Appeals in case 2021AP353, dated May 5, 2021, (Id. at 3–4);

3.

A notice of clerical error before the Wisconsin Court of
Appeals in case 2021xx323,6 dated May 12, 2021, (Id. at 5–6);

4.

An order from the Wisconsin Court of Appeals in case
2021xx323, dated May 14, 2021. This order addresses
Petitioner’s motion to stay his jail sentence, (Id. at 7);

5.

A motion for “Stay New Conditions,” reconsideration, and
commentary on his heart condition before the Wisconsin
Supreme Court in case 2021AP827, dated May 18, 2021, (Id. at
8–9); and

6.

A motion for “Emergency Injunction” pursuant to Wisconsin
Statutes section 813.02 before the Wisconsin Supreme Court,
dated June 1, 2021, (Id. at 10–13).

During its drafting of this Order, the Court could access the state court’s
docket entry for Petitioner’s appeal, case number 2021XX00323. However, as of
November 15, 2021 the records pertaining to this appeal are no longer available
online.
6

Page 4 of 7
Case 2:21-cv-00609-JPS Filed 11/16/21 Page 4 of 7 Document 11

Petitioner believes that, between his exhibits and amended petition,
he has adequately exhausted his state court remedies. However, his exhibits
and petitions belie his assertion.7 Assuming (generously) that Petitioner’s
May 6, 2021 motion requesting a “VJH” hearing was his first request for
such relief, as a collateral attack to his sentence, Petitioner fails to show that
after he received a denial from the Waukesha County Circuit Court, he then
appealed that denial to the state court of appeals and supreme court.
Rather, Petitioner’s exhibits to his amended petition show that in the
process of asking for injunctions and/or stays of his sentence, he cursorily
references that the state court had denied him a VJH hearing. (See, e.g., id.
at 6) (the May 12, 2021 “notice of clerical error”) (“In the past, argument was
made that a VJH v. CAB hearing . . . was held before the trial court. . . . There
has not been a VJH hearing . . . .”); (see also id. at 9) (the May 18, 2021 motion
for reconsideration) (Petitioner notes that in support for his motion in
support of a stay of his jail sentence the state courts did not hold a VJH
hearing). Petitioner also claims that the Wisconsin Court of Appeals’ May
14, 2021 order denying a stay of his jail sentence shows that he has
exhausted his state court remedies. (See id. at 7). But the court’s order
suggests that Petitioner sought only a stay of his sentence. It does not

In addition to failing to show that he has exhausted his state court
remedies, Petitioner’s plethora of exhibits and motions before this Court are a
combination of typed and hand-scrawled submissions, which are rife with
fragments, underdeveloped arguments, poor grammar, and nonsensical remarks.
Surely, the pleadings of pro se litigants “must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). However, Petitioner, who was once a doctor, has submitted items to this
Court indicating that he is employed at an educational institution. A litigant with
a similar pedigree should be capable of filing readable documents to a court,
especially if he seeks it to act on his or her behalf.
7

Page 5 of 7
Case 2:21-cv-00609-JPS Filed 11/16/21 Page 5 of 7 Document 11

suggest that he fairly presented the circuit court’s denial of a VJH hearing,
or “other constitutional violations”8 to the court of appeals.
Based on the foregoing, the Court determines that Petitioner did not
fairly present his claims for relief through one round of state court review.
Instead, Petitioner appears to have employed a “shotgun” approach, which
does not satisfy the federal exhaustion requirement. See McClain v.
Duckworth, 569 F. Supp. 840, 842 (N.D. Ind. 1983) (“[T]his court declines to
hold that petitioner’s ‘shotgun’ approach to filing numerous (and variously
captioned) pleadings among different state and federal courts constitutes
compliance with the statutory mandate of exhaustion.”). Therefore, the
Court will deny Petitioner a writ of habeas corpus and will dismiss this
action without prejudice. Finally, the Court will deny as moot Petitioner’s
motion for writ of mandamus (which he addressed to the Seventh Circuit
Court of Appeals) and motion to add evidence. (Docket #9, #10).
Under Rule 11(a) of the Rules Governing Section 2254 Cases, “the
district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Petitioner must make a
“substantial showing of the denial of a constitutional right” by establishing
that “reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations

To the extent Petitioner claims that he has fairly presented these “other
constitutional violations” through one full round of state court proceedings, the
Court finds Petitioner’s submissions are woefully inadequate, and thus, fail to
support this proposition.
8

Page 6 of 7
Case 2:21-cv-00609-JPS Filed 11/16/21 Page 6 of 7 Document 11

and citation omitted). No reasonable jurists could debate whether this
Court’s ruling as to Petitioner’s failure to exhaust is correct. As a
consequence, the Court is compelled to deny a certificate of appealability
as to Petitioner’s petition.
Accordingly,
IT IS ORDERED that Petitioner John D. Puchner’s amended petition
for writ of habeas corpus (Docket #6) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to
Petitioner John D. Puchner’s petition be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Petitioner’s motion for writ of
mandamus (Docket #9) and motion to add exhibits (Docket #10) be and the
same are hereby DENIED as moot; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DIMISSED without prejudice.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 16th day of November, 2021.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

Page 7 of 7
Case 2:21-cv-00609-JPS Filed 11/16/21 Page 7 of 7 Document 11