Myers v. Hepp
ORDER signed by Chief Judge Pamela Pepper on 11/13/2023 GRANTING #2 petitioner's motion for leave to proceed without prepaying filing fee. By end of day 1/19/2024, petitioner to file amended 2254 petition; failure to file by deadline will result in dismissal. (cc: all counsel and mailed to Keith Myers-with blank 2254 form)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 23-cv-1281-pp
ORDER GRANTING MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYING FILING FEE (DKT. NO. 2), SCREENING HABEAS PETITION
(DKT. NO. 1) AND ORDERING PETITIONER TO FILE AMENDED PETITION
On September 26, 2023, the court received from the petitioner (who is
incarcerated at Waupun Correctional Institution and is representing himself) a
petition for writ of habeas corpus under 28 U.S.C. §2254. Dkt. No. 1. The
petition challenges the April 2015 revocation of the petitioner’s extended
supervision (the extended supervision term was imposed as part of his
sentence after his 2003 conviction for felony murder (armed robbery) as a party
to a crime). Dkt. No. 1. With his petition, the petitioner filed a motion to
proceed without prepaying the $5 filing fee, dkt. no. 2, and a copy of his
certified trust account statement, dkt. no. 3.
This order screens the petition under Rule 4 of the Rules Governing
§2254 Cases, grants the motion to proceed without prepaying the filing fee,
dkt. no. 2, and orders the petitioner to file an amended petition.
Motion to Proceed Without Prepaying the Filing Fee (Dkt. No. 2)
There is a $5.00 filing fee for filing a habeas petition. 28 U.S.C. §1914(a).
The petitioner asks the court to allow him to proceed without prepaying that
fee. Dkt. No. 2. The request indicates that the petitioner has no assets—no
bank account, no retirement account, no investments, no real estate, and no
valuable other assets. Id. at 2. The petitioner’s trust account statement showed
that as of September 25, 2023, he had an end balance of $2.22 with an average
monthly balance of $4.94. Dkt. No. 3. The court will grant the petitioner’s
moiton to proceed without prepaying the filing fee.
Rule 4 Screening
The petition refers to State v. Myers, Case No. 2002CF006187
(Milwaukee County Circuit Court). The court has reviewed the publicly
available docket in that case, available at https://wcca.wicourts.gov/. It
indicates that on February 7, 2003, the petitioner pled guilty to one count of
felony murder (armed robbery) as a party to a crime. Id. On March 21, 2023,
the state court sentenced him to twenty years of imprisonment: eleven years of
incarceration followed by nine years of extended supervision. Id. The court
entered a judgment of conviction on March 24, 2003. Id.
The petition indicates that on May 27, 2014, the petitioner was released
on extended supervision following the expiration of his eleven-year period of
incarceration. Dkt. No. 1 at 2. But on April 22, 2015, an Administrative Law
Judge (ALJ) from the Department of Administration, Division of Hearings and
Appeals (the Division) revoked the petitioner’s extended supervision due to
“allegations of bank robbery.” Id. On June 6, 2015, the petitioner filed a
petition for writ of certiorari in Milwaukee County Circuit Court, challenging the
ALJ’s decision to revoke his extended supervision on grounds that the ALJ
admitted “hearsay testimony of a police detective” during the revocation
proceedings. Id. at 4.
The court has reviewed the publicly available docket for the petitioner’s
petition for writ of certiorari in Milwaukee County Circuit Court, State ex rel.
Myers v. Hayes, Case No. 2016CV6847 (Milwaukee County Circuit Court),
available at https://wcca.wicourts.gov/. While the docket shows that the
circuit court eventually denied the petition on October 9, 2017, affirming the
revocation of the petitioner’s extended supervision, see id., and that the
petitioner appealed the decision to the Wisconsin Court of Appeals, id., the
resulting per curiam decision from the Wisconsin Court of Appeals reveals that
the circuit court initially “reversed the revocation of [the petitioner’s] extended
supervision, concluding that the [ALJ] improperly admitted and relied in part
on hearsay evidence,” State ex rel. Myers v. Hayes, No. 2017AP2269, 2019 WL
549628, at *2 (Wis. Ct. App. Feb. 12, 2019). On remand back to the Division,
however, “[t]he ALJ again revoked [the petitioner’s] extended supervision . . . [,]
explain[ing] that ‘the revised decision eliminate[d]’ reliance on [the] hearsay
testimony.” Id. When the petitioner “petitioned again for a writ of certiorari
from the circuit court[,] . . . the circuit court denied the writ[.]” Id.
The petitioner appealed the circuit court’s decision denying him a writ of
certiorari, but on February 12, 2019, the Wisconsin Court of Appeals affirmed.
Id. at *5. In March 2019, the court of appeals denied the petitioner’s motion for
reconsideration, State ex rel. Myers v. Hayes, Case No. 2016CV6847, and, a
month later, the petitioner sought review from the Wisconsin Supreme Court,
id. The Wisconsin Supreme Court denied review on September 9, 2019. Id. (but
see Myers v. Hayes, Case No. 2019AP2269, 389 Wis. 2d 32 (Table) (Wis. Sept.
3, 2019) (reflecting that the Wisconsin Supreme Court denied review on
September 3, 2019)).
A federal court must “screen” a habeas petition before allowing it to
proceed. Rule 4 of the Rules Governing §2254 proceedings provides:
If it plainly appears from 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 that the
petitioner is not entitled to relief in the district court. At the screening stage,
the court expresses no view as to the merits of any of the petitioner’s claims.
Rather, the court reviews the petition and exhibits to 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 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 limitation
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 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
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).
The court has two concerns about the petition, based on the information
the petitioner provided. The first is the timeliness of the petition. The
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a
one-year statute of limitations on a petitioner’s habeas petition; it requires a
petitioner to file his federal habeas petition within one year from the latest of:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or law of the United
States is removed, if the applicant was prevented from filing by such
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
28 U.S.C. §2244(d)(1).
By presenting his challenge to the April 2015 revocation of his extended
supervision to the Wisconsin Court of Appeals, then unsuccessfully petitioning
the Wisconsin Supreme Court for review, see State ex rel. Myers v. Hayes,
2016CV006847, and Myers, 389 Wis. 2d 32 (Table), the petitioner appears to
have exhausted his state court remedies—at least for certain claims, see
Arrieta v. Battaglia, 461 F.3d 861, 868 (7th Cir. 2006) (stating that a petitioner
exhausts his claim when he presents it to the highest state court for a ruling
on the merits). But the revocation of the petitioner’s extended supervision
became final on (or around)1 December 2, 2019—ninety days after the
While the publicly available docket for the petition for writ of certiorari says
that the Wisconsin Supreme Court denied review of the petition on September
9, 2019, State ex rel. Myers v. Hayes, Case No. 2016CV6847, the case entry on
Wisconsin Supreme Court denied his petition for review. See Anderson v.
Litscher, 281 F.3d 672, 674-75 (7th Cir. 2002) (providing that the one-year
statute of limitations does not begin to run under 28 U.S.C. §2244(d)(1)(A) until
the expiration of the 90-day period in which prisoner could have filed a
petition for writ of certiorari with the United States Supreme Court). The oneyear limitation period likely began to run on or around December 3, 2019, but
the petitioner did not file his federal habeas petition until September 26,
2023—three years and nine months later. Dkt. No. 1. It appears that the
petition may be barred by the one-year statute of limitation imposed by
§2244(d)(1)(A). But because the limitation period is an affirmative defense, and
it is the State’s burden to prove that a petition was not timely filed, Gildon v.
Bowen, 384 F.3d 883, 886 (7th Cir. 2004), the court cannot conclude at the
screening stage that the petition was not timely filed.
The court’s second concern involves the “grounds for relief.” The petition
does not appear to raise any constitutional claims. “[A] district court shall
entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. §2254(a) (emphasis added). Under the heading “Grounds for
Relief,” the petitioner writes:
[B]y way of evidence I am submitting a response letter from an
Assistant Regional Chief May Jane Anttila in support to exorate [sic]
my Extended Supervision revoke[.]
Westlaw shows an opinion dated September 3, 2019, Myers, 389 Wis. 2d 32
Administrative Law Judge Vince Varone should have terminated the
revocation processing when the Region Chief stated that the
department will not request anymore [sic] adjornments [sic] given
that my agent witness did not show for final revocation hearing on
March 19, 2015.
Dkt. No. 1 at 6. As best the court can tell from reviewing the docket, the
petitioner has not filed a “response letter from an Assistant Regional Chief May
Jane Anttila.” More important, the court can’t determine what the petitioner
means in the second paragraph. As best the court can piece together, it
appears that the petitioner wanted someone to testify for him at the revocation
hearing—maybe his supervising probation officer—and that when that person
did not appear at the hearing, the ALJ refused to give the petitioner additional
time to secure the witness’s appearance. It appears that, instead of giving the
petitioner an adjournment to secure the witness’s appearance, the ALJ relied
on hearsay statements from a police officer to revoke the petitioner’s supervised
release. Maybe this is what happened, but the court cannot be sure from the
way the petition is worded. And if this is what happened, the petitioner has not
explained how this series of events violated his constitutional rights.
Before the court orders the respondent to respond to the petition, the
court will require the petitioner to file an amended petition. With this order, the
court will provide a blank §2254 form for the petitioner to use in preparing the
When drafting his amended petition (if he decides to do so), the petitioner
should keep in mind that a federal court can grant habeas relief only if a
petitioner challenges the constitutionality of his custody, and only if he raised
that constitutional challenge in his petition for writ of certiorari with the circuit
court, the court of appeals and in his petition for review to the Wisconsin
Supreme Court. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991) (providing
that a claim for relief is procedurally defaulted if the claim was not presented to
the state courts and it is clear those courts would now hold the claim
procedurally barred); see also Perruquet v. Briley, 390 F.3d 505, 515 (7th Cir.
2004) (same). Any grounds for relief which that the petitioner did not raise with
each of those state courts are “procedurally defaulted,” which means that a
federal habeas court cannot grant relief. The petition suggests that the
petitioner raised with each state court a claim that the ALJ impermissibly
relied on certain hearsay testimony when deciding to revoke his extended
supervision. See Dkt. No. 1 at 3-6. Such a claim for relief may be a cognizable
constitutional claim on a §2254 habeas petition. See United States v. Mosley,
759 F.3d 664, 667 (7th Cir. 2014).
The amended petition should include an explanation of the “who, what,
when, where” of the petitioner’s claim. Who violated the petitioner’s
constitutional rights? What did that person do to violate the petitioner’s rights?
When did the person violate the petitioner’s rights? Where did the violation
happen? This information will help the court determine whether the petitioner
has a constitutional claim that a federal court has the authority to consider.
One final note: as a request for relief the petitioner asks the court to hold
certain individuals “accountable” for the revocation of his extended
supervision. A §2254 petition for a writ of habeas corpus is not the statute that
holds accountable, or punishes, people who have violated someone’s
constitutional rights; §2254 only provides relief to a person held in custody in
violation of his constitutional rights by vacating, setting aside, or correcting
their sentences of confinement. If the petitioner believes that certain state
actors are responsible for violations of his constitutional rights and he wants
them to pay him money damages, he must file a civil lawsuit under 42 U.S.C.
§1983, not a habeas petition under 28 U.S.C. §2254.
The court GRANTS the petitioner’s motion for leave to proceed without
prepaying the filing fee. Dkt. No. 2.
The court ORDERS that the petitioner must file an amended petition
that complies with this order in time for the court to receive it by the end of the
day on January 19, 2024. If the court does not receive an amended petition by
the end of the day on January 19, 2024, the court will dismiss the petition
under Rule 4 for failure to state a claim that a federal habeas court may
Dated in Milwaukee, Wisconsin this 13th day of November, 2023.
BY THE COURT:
HON. PAMELA PEPPER
Chief United States District Judge
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