May v. McDermott

Filing 8

ORDER signed by Judge J P Stadtmueller on 5/10/2024. #3 Petitioner's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED. #1 Petitioner's Petition for Writ of Habeas Corpus is DENIED. CASE DISMISSED without prejudice for failure to exhaust state remedies. Certificate of Appelability is DENIED. See Order. (cc: all counsel, via mail to Edith Mae May at Taycheedah Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EDITH MAE MAY,
Petitioner,
v.

Case No. 24-CV-450-JPS

JENNIFER MCDERMOTT,

ORDER

Respondent.
On April 15, 2024, Petitioner Edith Mae May (“Petitioner”) filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No.
1. Petitioner also filed a motion for leave to proceed without prepayment
of the filing fee. ECF No. 3. The Court now grants the motion to proceed
without prepayment of the filing fee and screens the petition under Rule 4
of the Rules Governing Section 2254 Proceedings.
1.

LEAVE TO PROCEED WITHOUT PREPAYMENT
Ordinarily, a habeas petitioner must pay a statutory filing fee of

$5.00 to file a petition for habeas review in federal court. 28 U.S.C. § 1914(a).
However, under 28 U.S.C. § 1915(a)(1), the Court may authorize the
commencement of a habeas petition without prepayment of fees if a party
submits an affidavit asserting his inability to pay and stating “the nature of
the action, defense or appeal and affiant’s belief that the person is entitled
to redress.” Petitioner submitted a trust fund account statement along with
her motion. ECF No. 6.
Upon review of Petitioner’s prison trust account statement, the
Court finds that she is unable to pay the $5.00 filing fee based on her lack of
funds. The Court will accordingly grant the motion to proceed without
prepayment of the filing fee.

2.

FACTUAL BACKGROUND
Petitioner seeks federal habeas relief on the revocation order in

Racine County Circuit Court Case No. 2009CF001374. ECF No. 1 at 2.
Petitioner indicates that her conviction was entered on January 29, 2024,
and that she has yet to appeal her conviction in any higher court. Id. at 2-5.
The Court will not elaborate further on the factual background, however,
because Petitioner has failed to exhaust her administrative remedies and
this case must therefore be dismissed without prejudice.
3.

ANALYSIS
Rule 4 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 the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court.” Thus, 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).
Under Rule 4, the Court analyzes preliminary obstacles to review, including
whether the petitioner has complied with the statute of limitations,
exhausted available state remedies, avoided procedural default, and set
forth cognizable claims.
A district court may not address the merits of the constitutional
claims raised in a federal habeas petition “unless the state courts have had
a full and fair opportunity to review them.” Farrell v. Lane, 939 F.2d 409, 410
(7th Cir. 1991). Accordingly, a state prisoner is required to exhaust the
remedies available in state court before a district court will consider the
merits of a federal habeas petition. 28 U.S.C. § 2254(b)(1)(A); Dressler v.
McCaughtry, 238 F.3d 908, 912 (7th Cir. 2001) (if petitioner “either failed to
exhaust all available state remedies or raise all claims before the state courts,
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his petition must be denied without considering its merits.”). A petitioner
exhausts her constitutional claim when she presents it to the highest state
court for a ruling on the merits. Lieberman v. Thomas, 505 F.3d 665, 669 (7th
Cir. 2007) (citing Picard v. Connor, 404 U.S. 270, 275 (1971); Perruquet v. Briley,
390 F.3d 505, 513 (7th Cir. 2004)). Once the state’s highest court has had a
full and fair opportunity to pass upon the merits of the claim, a prisoner is
not required to present it again to the state courts. Humphrey v. Cady, 405
U.S. 504, 516 n.18 (1972). The exhaustion requirement applies to revocation
proceedings. See Schroeder v. Pollard, 361 F. Supp. 3d 800, 805 (E.D. Wis.
2019) (applying habeas exhaustion requirement to Wisconsin revocation
proceeding).
Here, Petitioner herself indicates that she filed no appeals of her
revocation conviction to any higher state court. Thus, Petitioner has not
sufficiently exhausted her state remedies and the Court will dismiss the
petition without prejudice. See Bolton v. Akpore, 730 F.3d 685, 696 (7th Cir.
2013) (noting that ordinarily an exhaustion dismissal is without prejudice
so that the petitioner may return to state court in order to litigate the claim).
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 citations
omitted). No reasonable jurists could debate whether Petitioner exhausted

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her state remedies. As a consequence, the Court is compelled to deny a
certificate of appealability as to the petition.
Accordingly,
IT IS ORDERED that Petitioner’s petition for a writ of habeas
corpus, ECF No. 1, be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Petitioner’s motion to proceed
without prepayment of the filing fee, ECF No. 3, be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED without prejudice for failure to exhaust state
remedies; and
IT IS FURTHER ORDERED that a certificate of appealability be and
the same is hereby DENIED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 10th day of May, 2024.
BY THE COURT

J.P. Stadtmueller
U.S. District Judge

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This Order and the judgment to follow are final. A dissatisfied party may
appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within thirty (30) days of
the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend
this deadline if a party timely requests an extension and shows good
cause or excusable neglect for not being able to meet the thirty-day
deadline. See Fed. R. App. P. 4(a)(5)(A). Moreover, under certain
circumstances, a party may ask this Court to alter or amend its judgment
under Federal Rule of Civil Procedure 59(e) or ask for relief from
judgment under Federal Rule of Civil Procedure 60(b). Any motion
under Federal Rule of Civil Procedure 59(e) must be filed within twentyeight (28) days of the entry of judgment. The Court cannot extend this
deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of
Civil Procedure 60(b) must be filed within a reasonable time, generally
no more than one year after the entry of the judgment. The Court cannot
extend this deadline. See id. A party is expected to closely review all
applicable rules and determine what, if any, further action is appropriate
in a case.

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