Weston v. Raemisch et al

Filing 6

ORDER denying 5 Motion for Reconsideration. Signed by Chief Judge Barbara B. Crabb on 6/23/09. (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

P etitio ner Michael Weston has filed a motion for reconsideration of the order and judgm ent entered June 2, 2009, dismissing petitioner's application for a writ of habeas corp us without prejudice on the ground that he had not exhausted his state court remedies. In his motion, petitioner urges this court to exercise its discretion and excuse the exhaustion req uirem en t in this case. Petitioner argues that Wisconsin's certiorari procedure is too lim ited in scope to fully address the wrongs that have been done to him by the Department of Corrections and by his lawyer in the revocation proceedings, who did not do enough to show that petitioner's relatives framed petitioner for murder-for-hire in order to get his parole revoked. In addition, he contends that the circuit court judge who heard his certiorari petition has refused to rule on all of his claims.

P etitio n er's arguments fail to convince me that I erred in dismissing the petition. Although it is true that the exhaustion requirement was founded on principles of comity, the req uirem en t is now codified at § 2254(b). A court may excuse the exhaustion requirement o n ly if 1) there is an absence of available state corrective process, § 2254(b)(1)(b)(i); or 2) "circum stances exist that render such process ineffective to protect the rights of the ap plican t." § 2254(b)(1)(b)(ii). Petitioner argues strenuously that the second exception applies in his case because the circuit court judge has refused to address his claims. However, p etitio n er has made no showing that he cannot obtain relief from the Wisconsin Court of A p peals for the circuit court's alleged wrongs. Even in the limited scope of an appeal in a certiorari action, petitioner can argue that the evidence was insufficient to support the revocation decision and that he was revoked on the basis of unreliable hearsay evidence, as h e argues in this court. Coleman v. Percy, 92 Wis. 2d 578, 588, 292 N.W. 2d 615, 621 (19 80 ) (scope of review on certiorari is limited to whether board 1) kept within its ju risd ictio n ; 2) acted according to law; 3) took an action that was arbitrary, oppressive or u nreaso n ab le and represented its will; and 4) made decision that was reasonable in light of evidence). Further, to the extent petitioner may be claiming that the lawyer who represented him at the revocation proceeding was ineffective, he can raise that claim in a petition for a w ri t of habeas corpus. State v. Ramey, 121 Wis. 2d 177, 359 N.W. 2d 402 (Ct. App. 1984 ). (It is not clear, however, that petitioner has a Sixth Amendment right to the effective assistan ce of counsel at a probation revocation proceeding. Gagnon v. Scarpelli, 411 U.S.

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77 8, 790 (1973) (adopting case-by-case approach for deciding when due process requires counsel to be appointed in parole revocation proceedings). Further, petitioner did not have th e right to counsel in the administrative appeal from a revocation order or during the certio rari review of the revocation order. State ex rel. Griffin v. Smith, 2004 WI 36, ¶ 3, 2 7 0 Wis.2d 235, 677 N.W.2d 259; State ex rel. Mentek v. Schwarz, 2000 WI App 96, ¶ 2, 2 3 5 Wis.2d 143, 612 N.W.2d 746, rev'd on other grounds, 2001 WI 32, ¶ 2, 242 Wis.2d 94, 624 N.W.2d 150.) As I stated in the June 2 order, however, petitioner "cannot simply op t 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).

ORDER IT IS ORDERED that Michael Weston's motion for reconsideration of this court's June 2, 2009 order is DENIED. E n tered this 23r d of June, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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