Robertson v. United States of America

Filing 3

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 1/27/2025. 2 Judge Joseph's report and recommendation ADOPTED. 1 Petitioner's motion to reduce sentence DENIED; to extent petitioner intended to file habeas petition, that petition DISMISSED as second/successive. The court DECLINES to issue certificate of appealability. (cc: all counsel and mailed to Jermel Robertson at Milwaukee Secure Detention Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JERMEL ROBERTSON,
Petitioner,
Case No. 24-cv-1663-pp
v.
UNITED STATES OF AMERICA,
Respondent.

ORDER ADOTPING JUDGE JOSEPH’S REPORT AND RECOMMENDATION
(DKT. NO. 2) AND DISMISSING CASE

On December 26, 2024, petitioner Jermel Robertson filed a Motion for
Sentence Reduction Under 18 U.S.C. §3582(c)(1)(A). Dkt. No. 1. On December
30, 2024, Magistrate Judge Nancy Joseph reviewed the motion, observing that
because the petitioner had no federal criminal case in which to file a §3582
motion, the clerk’s office had treated the motion as a petition for writ of habeas
corpus under 28 U.S.C. §2254 and had opened a new case under that statute.
Dkt. No. 2 at 1 n.1.1 Judge Joseph concluded that to extent the petitioner
intended to challenge his conviction in Milwaukee County Circuit Court Case
No. 2014CF2937, filing a habeas petition was the proper procedure. Dkt. No. 2
at 1. But because the petitioner previously had filed a petition in this district
challenging the same conviction (Robertson v. Johnson, 24-cv-707 (E.D. Wis.,

1 The petitioner used a form document to prepare his pleading, AO 250, which

is the form for federal criminal defendants to use in seeking compassionate
released from federal prison. Dkt. No. 1.
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June 6, 2024)), and because that petition had been dismissed as untimely,
Judge Joseph issued a recommendation that this court dismiss the case. Id. at
2. Judge Joseph warned the petitioner that he had fourteen days to object to
her recommendation and that failure to object would result in a waiver of his
right to appeal. Dkt. No. 2. To date, the petitioner has not filed an objection.2
I.

Legal Standard
This court may “accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate.” 28 U.S.C. §636(b)(1); Federal
Rule of Civil Procedure 72(b)(3). When a party does not object to the
recommendation, the district judge may reconsider the magistrate judge’s
ruling “where it has been shown that the magistrate judge’s order is clearly
erroneous or contrary to law.” 28 U.S.C. §636(b)(1)(A).
II.

Analysis
The petitioner listed his state court case number, 2014CF2937, in the

caption of his motion. Dkt. No. 1 at 1. The petitioner argues that his sentence
was “unlawfully enhanced” based on a prior state conviction, that the sentence
was excessive and that counsel was ineffective. Dkt. No 1 at 6.
The petitioner previously raised these arguments in a habeas petition
filed in this district, challenging the same state conviction. Case No. 24-cv-707
at Dkt. No. 1. On August 12, 2024, Judge Brett H. Ludwig issued an order to
2 Judge Joseph sent the December 30, 2024 order to the petitioner at the

Milwaukee Secure Detention Facility, the location reflected on his motion. Dkt.
No. 1 at 7. That order has not been returned to the court as undeliverable, and
the Wisconsin Department of Corrections inmate locator site shows that the
petitioner remains confined at MSDF. https://appsdoc.wi.gov/lop/
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show cause why the petition should not be dismissed as time-barred. Id. at
Dkt. No. 8. On August 23, 2024, Judge Ludwig dismissed the petition with
prejudice. Id. at Dkt. No. 10. As Judge Joseph explained in her December 30
order in this case, the dismissal of the petitioner’s prior petition on its merits
bars re-litigation. Case No. 24-cv-1663, Dkt. No. 2 at 2 (citing Pavlovsky v.
VanNatta, 431 F. 3d 1063, 1064 (7th Cir. 2005).
The petitioner filed the instant case using a federal form for a motion
filed under 18 U.S.C. §3582 seeking a reduction of a federal sentence. Judge
Joseph correctly concluded that the petitioner was challenging the length of his
state sentence and the effectiveness of counsel in his state criminal case and
that such complaints must be filed as §2254 habeas petitions. Id. at 1. Judge
Joseph also recognized that the petitioner had filed a prior habeas petition and
that dismissal of that petition on its merits meant that he couldn’t file another.
Id. at 2. Section 2244(b) states that “[a] claim presented in a second or
successive habeas corpus application under section 2254 that was presented
in a prior application shall be dismissed.” 28 U.S.C. §2244(b).
Judge Joseph’s recommendation was neither clearly erroneous (or
erroneous at all) nor contrary to law. The court will adopt the recommendation
and dismiss this case.
III.

Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2254 Cases in the United

States District Courts, “[t]he district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” For a
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certificate of appealability to issue, a petitioner must show that “reasonable
jurists” would find the district court’s “assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because the
petitioner filed a prior habeas petition that was dismissed on its merits, no
reasonable jurist would find Judge Joseph’s decision clearly erroneous or this
court’s ruling debatable. The court will decline to issue a certificate of
appealability.
IV.

Conclusion
The court ADOPTS Judge Joseph’s report and recommendation. Dkt. No.

2.
The court DENIES the petitioner’s motion to reduce sentence. Dkt. No. 1.
To the extent that the petitioner intended to file a second habeas
petition, the court DISMISSES the second/successive petition.
The court DECLINES to issue a certificate of appealability.
The court ORDERS that this case is DISMISSED. The clerk will enter
judgment accordingly.
Dated in Milwaukee, Wisconsin this 27th day of January, 2025.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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