Warren v. State of Wisconsin

Filing 3

ORDER signed by Judge J P Stadtmueller on 10/23/2024. Clerk of Court is DIRECTED to FILE Petitioner's submissions as a habeas corpus action under 28 U.S.C. § 2254 and to CLOSE miscellaneous case no. 24-MC-43. See Order. (cc: all counsel, via mail to Shun Warren at Racine Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHUN WARREN,
Petitioner,
Case No. 24-MC-43-JPS
Case No. 24-CV-1349-JPS

v.

-JPS

STATE OF WISCONSIN,

ORDER

Respondent.

1.

INTRODUCTION
Now before the Court is a motion for an extension of time to file a

properly exhausted habeas petition under 28 U.S.C. § 2254. ECF No. 1.
Petitioner Shun Warren (“Petitioner”) writes that he has “[e]xhausted
claims currently ripe for review” as well as “newly unexhausted claims”
that he intends to first present before the state courts in order to avoid
presenting this Court with a mixed petition. Id. at 1. He represents that his
habeas petition “will be due to this Court October 30, 2024.” Id.
Petitioner appears to be in state custody pursuant to a state
conviction. See State of Wisconsin Offender Locator, available at
https://appsdoc.wi.gov/lop/welcome (last visited Oct. 23, 2024) (noting
Petitioner’s status as “Incarcerated” at Racine Correctional Institution);
Wisconsin

Circuit

Court

Access,

available

at

https://www.wicourts.gov/casesearch.htm (last visited Oct. 23, 2024)
(listing three Wisconsin convictions for Petitioner, the most recent being a
conviction in Milwaukee County Circuit Court Case No. 2002CF003088). It
appears, based on Petitioner’s submissions, that he intends to file a petition

for a writ of habeas corpus related to that most recent state conviction, State
of Wisconsin v. Shun Warren, 2002CF003088 (Milwaukee Cnty. Cir Ct. 2002),
available

at

https://wcca.wicourts.gov/caseDetail.html?caseNo=2002CF003088&county
No=40&index=0 (last visited Oct. 23, 2024); ECF No. 2 at 1 (referencing Case
No. 2002CF3088).
2.

ANALYSIS
2.1

Jurisdiction to Entertain the Motion

The Court must begin by addressing a jurisdictional roadblock.
Petitioner moves for an extension of time in which to file a petition for a
writ of habeas corpus, but he does not currently have an active, open habeas
case. In such a circumstance, the Court typically lacks jurisdiction to grant
the sought extension and must dismiss the case without prejudice. See, e.g.,
Ureno v. Warden, No. CV-16-09547 DSF (RAO), 2017 U.S. Dist. LEXIS 1809,
at *2 (C.D. Cal. Jan. 4, 2017) (denying petitioner’s motion for extension of
time to file petition for writ of habeas corpus because “[a]s Petitioner has
not actually filed a federal habeas petition challenging his conviction and/or
sentence, there are no adverse parties before the Court and there is no
concrete dispute or this Court to decide” (citing Woodford v. Garceau, 538
U.S. 202, 207–08 (2003)); Bjorn v. Warden, No. C-09-0714 JSW (PR), 2009 U.S.
Dist. LEXIS 56211, at *3 (N.D. Cal. May 14, 2019) (“This Court has no
authority to prospectively enlarge the limitations period and could not
grant the requested relief without offending the Constitution’s case or
controversy requirement.”); Enfinger v. Dep’t of Corr. Sec’y, No. 3:21-cv-126LC-MJF, 2021 U.S. Dist. LEXIS 37532, at *1–2 (N.D. Fla. Jan. 21, 2021)
(recommending that case be dismissed for lack of jurisdiction where
petitioner filed motion for enlargement of time to § 2254 motion), report and
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recommendation adopted at Enfinger v. Dep’t of Corr. Sec’y, No. 3:21-cv-126-LCMJF, 2021 U.S. Dist. LEXIS 36199 (N.D. Fla. Feb. 26, 2021); Evans v. Doe, No.
19-CV-2768 (CM), 2019 U.S. Dist. LEXIS 65142, at *2–3 (S.D.N.Y. Apr. 12,
2019); Williams v. Mich. Dep’t of Corr., No. 22-cv-12923, 2023 U.S. Dist. LEXIS
98327, at *1 (E.D. Mich. June 6, 2023) (“Petitioner’s motion for enlargement
of time must be denied because he has not yet filed a habeas petition.
Petitioner cannot request relief from his filing deadline before he has
initiated a habeas case in this Court.”). Petitioner’s motion—to the extent
that it is construed solely as a motion—is subject to denial, and this action
to dismissal, on that basis.
That outcome would be avoided, however, if the Court were to
construe the instant motion as a § 2254 habeas petition. The Court must
consider whether such a construction would be appropriate. As a general
matter, “[w]hen determining the character of a pro se filing, . . . courts
should look to the substance of the filing rather than its label.” United States
v. Antonelli, 371 F.3d 360, 361 (7th Cir. 2004) (citing Gleash v. Yuswak, 308
F.3d 758, 761 (7th Cir. 2002) and Godoski v. United States, 304 F.3d 761, 763
(7th Cir. 2002)). Indeed, while it is not labeled as a habeas petition,
Petitioner’s motion lists and details each of the grounds for relief that
Petitioner intends to raise, rather than solely focusing on the need for more
time. Cf. Socha v. Boughton, 763 F.3d 674, 683 (7th Cir. 2014) (noting that
courts cannot construe as habeas petitions motions for extensions of time to
file habeas petitions that “focus[] exclusively on the need for more time,”
“d[o] not reveal any reasons justifying relief,” and “do not specify all the
grounds for relief available to the petitioner and state the facts supporting
each ground” (citing Rule 2(c) of the Rules Governing Section 2254 Cases in
the United States District Courts)).
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On the other hand, the practice of construing filings as habeas
petitions can sometimes create unintended consequences. The Seventh
Circuit has accordingly cautioned district courts against doing so. See Bunn
v. Conley, 309 F.3d 1002, 1007 (7th Cir. 2002) (citing Moore v. Pemberton, 110
F.3d 22, 24 (7th Cir. 1997) and Copus v. Edgerton, 96 F.3d 1038, 1039 (7th Cir.
1996)) (holding that district court erred in recharacterizing a prisoner’s pro
se action for declaratory judgment as a habeas petition).
In this case, the Court does not believe that construing Petitioner’s
motion as a habeas petition would cause any unintended consequence or
otherwise be inappropriate.1 This case is distinct from those in which the
Seventh Circuit concluded that the district court erred in construing a
prisoner’s filing as a petition for a writ of habeas corpus. For example, in
Moore, the prisoner filed a civil action under 42 U.S.C. § 1983 seeking
damages and other relief, but not seeking a release from custody. 110 F.3d
at 23. Because he “d[id] not seek release from custody,” it was error for the
district court to construe his action as one of habeas corpus. Id.

Although the Court concludes infra Section 2.2 that the motion construed
as a habeas petition is an unauthorized successive petition and is therefore subject
to dismissal, that result was inevitable and would have been reached regardless of
whether the Court opted to construe the instant motion as a petition or waited
until it received the petition that Petitioner represented he planned to send before
“October 30, 2024.” ECF No. 1 at 1.
1

In any event, “[p]risoners cannot avoid the [Antiterrorism and Effective
Death Penalty Act’s] rules by inventive captioning.” Melton v. United States, 359
F.3d 855, 857 (7th Cir. 2004) (citing Owens v. Boyd, 235 F.3d 356 (7th Cir. 2000) and
United States v. Evans, 224 F.3d 670 (7th Cir. 2000)). “[T]he name [of the filing]
makes no difference. It is substance that controls.” Id. (citing Thurman v. Gramley,
97 F.3d 185, 186–87 (7th Cir. 1996)).

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The same is not true here. Petitioner’s motion, attachment, and
exhibits make clear that he seeks to proceed in habeas corpus and intends
to do so. He does not merely reference the desired extension of time but
also lists “reasons justifying relief” and “specif[ies] all the grounds for relief
available to” him. Socha, 763 F.3d at 683. The Court is therefore satisfied that
it may properly construe Petitioner’s motion for an extension of time and
supporting materials as a petition for a writ of habeas corpus under 28
U.S.C. § 2254. The Court will accordingly order the Clerk of Court to file
Petitioner’s submissions as a habeas corpus action under 28 U.S.C. § 2254.
2.2

Unauthorized Second or Successive Petition

Having concluded that it may interpret Petitioner’s motion as a
habeas petition in and of itself, the Court will next address the fact that this
is not Petitioner’s first attempt at seeking a writ of habeas corpus in federal
court. Petitioner has already unsuccessfully sought a writ of habeas corpus
as to his 2002 Milwaukee County conviction. Shun Warren v. William J.
Pollard, Case No. 09-CV-919-CNC (E.D. Wis.).2 In September 2009,
Petitioner filed a § 2254 petition under 28 U.S.C. § 2254 with respect to
Milwaukee County Case No. 2002CF003088. Id., ECF No. 1. The petition
raised eight claims:
(1) The trial court committed reversible error in denying the
motion to withdraw his plea and should have granted the
motion due to his haste and confusion in the matter; (2) the
“motion to withdraw the no contest plea for fair and just
reason was credible because he made a prompt motion to
withdraw”; (3) the court denied the motion to withdraw his
plea “on improper grounds”; (4) postconviction and appellate
counsel “failed to raise viable issues, [and] instead filed

See Warren v. Pollard, No. 09-C-0919, 2011 U.S. Dist. LEXIS 139070 (E.D.
Wis. Nov. 30, 2011), aff’d, 712 F.3d 1090 (7th Cir. 2013).
2

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weaker and incomplete issues to withdraw [his] plea”; (5) trial
counsel failed to properly inform him of the elements of the
crime of which he was charged; (6) trial counsel failed to
“properly investigate” a defense of mental disease or defect;
(7) “the trial court considered improper and irrelevant
information” at sentencing; and (8) the appellate court relied
on a procedural bar and thus failed to rule on the merits of the
motion to withdraw his plea.
Id., ECF No. 26 at 2–3 (citing id., ECF No. 1). The court consolidated the
claims, interpreting “grounds 1 and 7 [as] form[ing] colorable constitutional
claims of denial of due process,” “grounds 4, 5, and 6 [as] form[ing]
colorable constitutional claims of ineffective assistance of counsel,” and
“grounds 2, 3, and 8” as “[in]cognizable constitutional claims.” Id. at 3.
In November 2011, the court denied that petition on its merits,
concluding that “none of [Petitioner’s] claims merit habeas relief.” Id. at 3,
14. In April 2013, the Seventh Circuit affirmed that denial. Id., ECF No. 47.
These circumstances raise the question of whether the instant motion
(construed as a petition) is second or successive.
“Because [Petitioner] already has one Section 225[4] [petition] to his
name, his new filing must clear the jurisdictional hurdle imposed by the
Antiterrorism and Effective Death Penalty Act (AEDPA),” which “provides
that a district court may not entertain a ‘second or successive’ [petition]
filed by a . . . prisoner unless the prisoner has first obtained authorization
to file from the court of appeals.” United States v. Obeid, 707 F.3d 898, 901
(7th Cir. 2013) (citing §§ 2254(a) and 2255(h) and Nuñez v. United States, 96
F.3d 990, 991 (7th Cir. 1996)).
Petitioner lists in his instant motion (construed as a habeas petition)
the grounds for relief that he intends to eventually present. ECF No. 1 at 3–
4. He contends, inter alia, that the circuit court “[u]se[d] inaccurate

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sentencing procedures”; that the circuit court abused its discretion in
declining to resentence Petitioner; ineffective assistance of trial counsel for
“failure to properly . . . prepare herself with the case and present . . .
defenses that were relevant”; ineffective assistance of trial counsel for
“fail[ing] to present the true nature of [the] charges to” Petitioner; and that
his plea was unknowing because the “trial court . . . fail[ed] to [en]sure . . .
[that] [Petitioner] understood the . . . crime to which he pled and the
punishment he faced.” Id. At least some of the grounds he intends to raise
are similar, if not identical, to grounds he already raised in his previous
habeas petition and which both the district court and the Seventh Circuit
rejected on their merits. Warren v. Pollard, Case No. 2:09-cv-00919-CNC, ECF
Nos. 26, 47 (E.D. Wis.). Indeed, he writes that he “wishes once and for all to
present these issues and claims,” ECF No. 1 at 2 (emphasis added), which
suggests that he has already attempted to raise them before.
While the AEDPA does not itself define “second or successive,”
Vitrano v. United States, 643 F.3d 229, 233 (7th Cir. 2011), the Court is
nevertheless confident that the instant motion construed as a habeas
petition is an unauthorized successive one. This is not a case in which “the
previous petition was dismissed for technical reasons or failure to
exhaust—that is, deficiencies a petitioner can cure before re-filing” such
that “the subsequent petition does not constitute a ‘second or successive’
petition implicated in § 2244(d).” Hardison v. Pugh, No. 13-CV-1244, 2014
U.S. Dist. LEXIS 66107, at *4 (E.D. Wis. May 14, 2014) (citing Hernandez v.
Wallace, 524 F. Supp. 2d 1097, 1099 (E.D. Wis. 2007)). To the contrary, the
merits of Petitioner’s grounds for relief were thoroughly considered and
rejected, which rejection the Seventh Circuit affirmed. No. 2:09-cv-00919CNC, ECF Nos. 26, 47. His previous federal habeas case was, in other
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words, “the real thing” such that it may be deemed second or successive.
Potts v. United States, 210 F.3d 770, 770 (7th Cir. 2000).
Petitioner was accordingly required to seek approval from the
Seventh Circuit before attempting to present it to this Court. 28 U.S.C.
§ 2244(b)(3)(A) (“Before a second or successive application permitted by
this section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to
consider the application.”); see also Nuñez, 96 F.3d at 991 (“No matter how
powerful a petitioner’s showing, only th[e] [Court of Appeals] may
authorize the commencement of a second or successive petition.”); Holt v.
United States, 843 F.3d 720, 722 (7th Cir. 2016) (“A second or successive
collateral attack is permissible only if the court of appeals certifies that it
rests on newly discovered evidence . . . or ‘a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable.’” (quoting 28 U.S.C. § 2255(h)(2) and citing 28
U.S.C. § 2244(b))).
Petitioner makes no indication of having “ask[ed] t[he] [Seventh
Circuit] for its permission to file his [petition],” so the Court “lack[s]
jurisdiction to adjudicate it.” Obeid, 707 F.3d at 901 (quoting Nuñez, 96 F.3d
at 991); cf. Melton, 359 F.3d at 857 (“[The filing] therefore was a motion
under § 2255, notwithstanding its caption, and the district court was
obliged to dismiss it for want of jurisdiction because [the movant] had not
received th[e] [Seventh Circuit’s] permission to commence a second or
successive collateral attack.”).3

Nor did the Court find, in its independent review on PACER, any such
request for permission.
3

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3.

CONCLUSION
In light of the foregoing, the Court must dismiss this habeas case

without prejudice for lack of jurisdiction. Should Petitioner wish to place
another petition for a writ of habeas corpus before this Court as to his 2002
Milwaukee County conviction, he must seek leave from the Seventh Circuit
to do so and, if he receives such leave, he must present proof of it to this
Court.
Accordingly,
IT IS ORDERED that the Clerk of Court shall file Petitioner’s
submissions as a habeas corpus action under 28 U.S.C. § 2254 and close
miscellaneous case no. 24-MC-43;
IT IS FURTHER ORDERED that Petitioner Shun Warren’s motion,
ECF No. 1, be and the same is hereby CONSTRUED as a petition for a writ
of habeas corpus under 28 U.S.C. § 2254;
IT IS FURTHER ORDERED that Petitioner Shun Warren’s motion
construed as a habeas petition, ECF No. 1, be and the same is hereby
DENIED as an unauthorized successive petition; and
IT IS FURTHERED ORDERED that Petitioner’s habeas action be
and the same is hereby DISMISSED without prejudice for lack of
jurisdiction.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 23rd day of October, 2024.
BY THE COURT:

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

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