Johnson v. Hepp

Filing 4

ORDER dismissing 1 Petition for Writ of Habeas Corpus without prejudice for petitioner's failure to exhaust his state court remedies. Signed by Chief Judge Barbara B. Crabb on 10/13/09. (elc),(ps)

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

S TEV EN JOHNSON, P e ti ti o n e r , v. R A N D A L L HEPP, Warden, S tan ley Correctional Institution, R espo nd ent. OR DER 0 9 -c v -5 8 2 -s lc

Steven Johnson, an inmate at the Stanley Correctional Institution in Stanley, W isco n sin , has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. H e has paid the five dollar filing fee. The petition is before the court for preliminary review pursu an t to Rule 4 of the Rules Governing Section 2254 Cases. Acco rding to the petition, petitioner was convicted on August 26, 2009 in the Circuit C ou rt for Milwaukee County of robbery by threat of force. Petitioner alleges that his custody resulting from that conviction is in violation of various rights guaranteed to him by the United States Constitution. Pursuant to 28 U.S.C. § 2254(b), a federal district court may not grant a state prisoner's application for a writ of habeas corpus unless the prisoner has first exhausted the state court remedies that are available to him. State court records available electronically sh ow that the circuit court has not yet entered in judgment in petitioner's case. A sentencing hearin g is scheduled for October 29, 2009. Wisconsin Circuit Court Access,

h ttp ://w c caw i co urts.go v (search Milwaukee County Case 08CF195) (visited Oct. 12, 2009). T hus, petitioner's conviction has not even become final yet. Petition er asserts that the various claims he raises in the petition have been exhausted b y virtue of his having filed an interlocutory appeal from the circuit court's order denying his motion to suppress evidence. However, the court of appeals did not consider the merits o f petitioner's appeal, finding that it did not meet the criteria for interlocutory appeal. O rder of Wis. Ct. of Appeals, 2009 AP 500-CRLV, Apr. 22, 2009, attached to petition, dkt. # 1, at exh. B. Petitioner still has state remedies that remain available to him on his claims, nam ely, the direct appeal process provided by Wis. Stat. § 974.02. He must complete that pro cess , including a petition for discretionary review with the Wisconsin Supreme Court, befo re he will be deemed to have exhausted his state court remedies. O'Sullivan v. Boerckel, 52 6 U.S. 838, 845 (1999).

OR DER IT IS ORDERED that the petition of Steven Johnson 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 13t h day of October, 2009. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge 2