Weston v. Raemisch et al

Filing 3

ORDER dismissing 1 Petition for Writ of Habeas Corpus without prejudice for failure to exhaust state court remedies. 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

M IC H A EL WESTON, P e ti ti o n e r , v. R I C H A R D R A E M I S C H , Secretary, W isco n sin Department of Corrections and M ICH AEL M O RGAN, Secretary, W isco n sin Department of Administration, R espo nd ent. OR DER 0 9 - cv -3 3 9 - b b c

Petitioner Michael Weston, an inmate at the Racine Correctional Institution, has filed a petition 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 28 U .S .C . § 2254. T h e subject of the petition is an administrative order by the Wisconsin Division of H earings and Appeals revoking petitioner's parole. Petitioner has submitted a 31-page petition outlining the facts leading up to his parole revocation and presenting numerous argu m e nts why the revocation decision was in error. Although the precise nature of

petition er's claims is not entirely clear, it appears that petitioner is contending, among other th in gs, that the revocation proceedings did not comport with the minimal requirements of d ue process as outlined by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 489

(1 9 7 2). In addition, he contends that his revocation was the result of a conspiracy among his parole officer, her superiors and certain other individuals. T o be entitled to federal habeas relief, 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). Further, pursuant to 28 U.S.C. § 2254(b)(1), a federal court shall not grant an app lication on behalf of a state prisoner unless it appears that the applicant has exhausted the state remedies that are available to him. Principles of comity require that the habeas p etitio n er present his federal constitutional claims initially to the state courts in order to give the state the "'opportunity to pass upon and correct alleged violations of its prisoners' fed eral rights."' Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U .S. 270, 275 (1971) (internal quotation marks omitted)). Claims are exhausted when they h ave been presented to the highest state court for a ruling on the merits of the claims or w hen state remedies no longer remain available to the petitioner. Engle v. Isaac, 456 U.S. 10 7, 125 n. 28, 1570 n. 28 (1982); 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right un der the law of the State to raise, by any available procedure, the question presented"). When a petitioner raises claims that have not been exhausted in state court and state rem edies remain available, the federal court must dismiss the petition without prejudice to allow the petitioner to return to state court. Rhines v. Weber, 544 U.S. 269, 274 (2005); R ose v. Lundy, 455 U.S. 509, 510 (1982). After exhausting his claims in state court, the

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p etitio n er may then re-present his claims to the federal court in a new habeas petition, assu m i ng he does not run afoul of the statute of limitations. Rhines, 544 U.S. at 275. P etitio n er alleges that after exhausting his administrative remedies, he filed a petition fo r a writ of certiorari in the Circuit Court for Dane County. According to records available electronically, that court denied the certiorari petition on March 10, 2009. Wisconsin C ircuit Court Access, http://wcca.wicourts.gov (search Dane County Case 2008cv3972) (visited June 2, 2009). Petitioner filed motions for reconsideration on March 24 and April 6, 2009, which were both denied. On May 6, 2009, he filed a motion for clarification of the circuit court's latest order; the court has not ruled on that motion. It appears that petitioner has not filed a notice of appeal from any of the circuit court's orders. In his petition and cover letter, petitioner asserts that pursuing a state court appeal w ou ld be futile because the appellate court is not likely to grant him relief. However, when a petitioner claims that he cannot obtain relief from the state courts, the pertinent question is not whether the state court would be inclined to rule in the petitioner's favor, but whether there is any available state procedure for determining the merits of petitioner's claim. White v. Peters, 990 F.2d 338, 342 (7th Cir. 1993). A petitioner "cannot simply opt out of the state review process because he is tired of it or frustrated by the results he is getting." Cawley v. DeTella, 71 F.3d 691, 695 (7th Cir. 1995). No matter how slim his chances of success, petition er must complete the state appellate review process before presenting his claims in federal court.

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OR DER IT IS ORDERED that the petition of Michael Weston for a writ of habeas corpus is D IS M IS S ED WITHOUT PREJUDICE for his failure to exhaust his state court remedies. 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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