Al Ghashiyah (khan), Tayr Kilaab v. Huibregtse

Filing 7

ORDER dismissing 1 Petition for Writ of Habeas Corpus. Petitioner is not entitled to a certificate of appealability under 28 U.S.C. § 2253(c)(1). Signed by Chief Judge Barbara B. Crabb on 6/2/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN

T AY R KILAAB AL GHASHIYAH (KHAN), P e ti ti o n e r , v. P ET E R HUIBREGTSE, Warden, W isconsin Secure Program Facility, R espo nd ent. O P IN IO N AND ORDER 0 9 -c v -2 3 6 -s lc

Petition er Tayr K. al Ghashiyah (Khan), formerly known as John Casteel, has filed a document styled as an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . He has paid the five dollar filing fee. The petition is before the court for preliminary review pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Petitioner is in custody pursuant to two judgments of conviction entered by the C ircuit Court for Brown County in 1985 and 1986 for bank robbery, for which petitioner is serving a total of 50 years. Although petitioner raises some claims that appear to be d irected at one of his underlying convictions and sentence (e.g., Pet., dkt. 1, at ¶24, alleging that summons and complaint were "defective and void" because district attorney failed to co m p ly with procedural rules), for the most part, the petition is directed at the Department of Corrections' refusal to release him on discretionary parole. Petitioner's attack on his paro le status is two-fold. First, he contends that his prison records contain "inaccurate" info rm ation upon which the parole commission has relied to deny his release. This

in accu rate information consists of 1) juvenile adjudications; 2) uncounseled convictions; 3) "invalidated" conduct reports; and 4) untrue hearsay allegations. Id. at ¶13. With respect

to the conduct reports, petitioner lists approximately 150 violations that he received "betw een the solar years of 1976 through 2009" for which he alleges he was never given ad van ce notice of the date and time of the disciplinary hearing. Pet., dkt.1, at ¶¶20-21. Second, he contends that the department has violated the ex post facto clause by im plem enting new parole procedures that operate more harshly than those in place at the tim e of his conviction. Id. at ¶9. Petitioner is a restricted filer who has been barred by the Court of Appeals for the S even th Circuit from filing any civil lawsuits in this circuit until he pays fees and costs from all of his federal suits. Al Ghashiyah v. Frank, 08-2581 (7th Cir. Dec. 18, 2008). The filing bar does not apply to applications for writs of habeas corpus, so the clerk of this court accepted the instant petition for filing. However, petitioner has not stated a claim for which habea s corpus is the proper remedy. To be entitled to a writ of habeas corpus, a state prisoner must show that he is "in custo dy in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In Richmond v. Scibana, 387 F.3d 602, 605 (7th Cir. 2004), the Court of Ap peals for the Seventh Circuit explained that § 2254 applies only when a state prisoner claim s that he has a right to be released on parole; if the prisoner claims instead that parole o fficials are "apt to use incorrect rules when resolving a future application," he must use 42 U .S .C . § 1983. See also Williams v. Benik, 04-C-966-C, Op. and Order entered April 18, 20 05 (explaining that in Seventh Circuit, habeas corpus and § 1983 are mutually exclusive)

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(co p y attached); but see Terrell v. United States, 564 F.3d 442, 446-47 (6th Cir. 2009) and D ocken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004) (rejecting idea that habeas corpus an d § 1983 are always mutually exclusive). Petitioner does not contend that he is entitled to be released immediately on parole, but rather that his chances for discretionary release w ou ld be greater at the next hearing if the "inaccurate" information and "invalid" conduct repo rts were expunged from his record and the department was barred from applying its alleged ex post facto policy. Thus, the most this court could order is a new parole hearing at which the parole commission could still decline to shorten petitioner's prison term. Wis. S tat. § 304.06(1)(b) (parole commission "may" parole inmate who has served at least 25 p ercen t of his sentence). Such a claim lies outside "the core of habeas corpus," Wilkinson v. Dotson, 544 U.S. 74, 82 (2005), and in this circuit, must be brought as a § 1983 action. I note that petitioner alleges that the department relied on some of the allegedly "invalid" conduct reports as a reason not only to deny him release on discretionary parole, b u t also to deprive him of good-time credits. Pet., dkt. 1, ¶35. An administrative order revoking good-time credits is properly challenged in a habeas corpus action. Moran v. S on dalle, 218 F.3d 647, 65051 (7th Cir. 2000) (per curiam). However, it is impossible to conclude from this petition that petitioner is challenging any particular administrative decision that resulted in a loss of good-time credits. Although petitioner lists the numbers of some 150 "invalid" conduct reports, he does not specify which of those led to the deprivation of good time as opposed to some lesser disciplinary sanction, does not provide

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any dates or facts relating to any disciplinary proceeding and makes no showing that he p ro p erly exhausted both his administrative and state court remedies with respect to any p articu lar disciplinary proceeding. McAtee v. Cowan, 250 F.3d 506, 508 (7th Cir. 2001) (W iscon sin inmates challenging deprivation of good time credits must petition Wisconsin s ta te courts for writ of certiorari before filing federal petition); State ex rel. Ortega v. M cC a ugh try, 221 Wis. 2d 376, 585 N.W. 2d 640 (Ct. App. 1998) (certiorari review of w arden's order affirming decision of prison disciplinary committee). Further, petitioner has no t asked the court to order a new disciplinary hearing or restore good time credits with respect to any particular disciplinary proceeding. Thus, it appears that the only relief petition er is seeking with respect to the conduct reports is to have them expunged from his reco rd in order to expedite his release on parole. This claim is not properly brought in a habea s proceeding. Finally, as I have already noted, some of the allegations in the petition are directed at petitioner's underlying convictions and sentence. However, petitioner's convictions and sentence were the subject of an unsuccessful habeas corpus petition that petitioner filed in 19 92 . Kilaab Al Ghashiyah (Khan) v. Smith, 101 F.3d 110 (Table), 1996 WL 625616 (7th C ir. 1996) (unpublished opinion). To bring a second or successive habeas petition, a petitio ner must first obtain prior authorization from the court of appeals. 28 U.S.C.

§ 2244(b)(3)(A). Petitioner has not obtained this authorization. Accordingly, to the extent

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his petition purports to attack his 1985 and 1986 judgments of conviction, this court lacks ju risd ictio n over the petition. Acco rdingly, because petitioner's claims related to the parole commission's refusal to release him on parole are not properly brought in a habeas corpus proceeding, the petition m u st be dismissed. Petitioner may not file a § 1983 action, however, until the court of a p p e a ls lifts the filing bar. Petitioner's challenges to his 1985 and 1986 judgments of co n victio n and sentence will be dismissed for lack of jurisdiction. As a final matter, I find that petitioner is not entitled to a certificate of appealability p ursu an t to 28 U.S.C. § 2253(c)(1). It is plain that petitioner has not obtained permission from the Court of Appeals for the Seventh Circuit to file a second federal collateral attack on his underlying convictions. As for his challenges to the denial of release on parole, I have no t denied the claims but have found that they must be brought in a § 1983 action. The fact th at petitioner has been barred from filing such actions does not convert this order into a dism issal with prejudice: petitioner is free to pursue his claims once he satisfies the

con dition s of the court of appeals' order.

ORDER IT IS ORDERED that the document styled as a petition for a writ of habeas corpus filed by Tayr K. al Ghashiyah (Khan) is DISMISSED. Petitioner's challenges to his 1985 an d 1986 judgments of convictions are DISMISSED for lack of jurisdiction. Petitioner's

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challenges to the refusal of the Department of Corrections to release him on parole are D ISM ISSED WITHOUT PREJUDICE on the ground that they are not properly brought in a habeas corpus petition. Petition er is not entitled to a certificate of appealability under 28 U.S.C. § 2 2 5 3 ( c ) (1 ) . E n tered this 2n d day of June, 2009. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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