Anderson v. Timberlake

Filing 5

ORDER denying 4 Motion for Reconsideration and petitioner is denied a certificate of appealability. Petitioner may seek a certificate from the court of appeals. Signed by Chief Judge Barbara B. Crabb on 2/2/10. (elc),(ps)

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

C H A R LES G. ANDERSON, P e ti ti o n e r , v. KA R EN TIMBERLAKE, Secretary, D epartm ent of Health Services, R espo nd ent. OR DER 0 9 - cv -7 4 2 - b b c

O n December 11, 2009, this court entered an order dismissing Charles G. Anderson's habea s corpus application without prejudice, explaining that petitioner's challenge to his transfer to the Wisconsin Resource Center was not properly brought in a habeas corpus petition but could be raised in a civil action pursuant to 42 U.S.C. § 1983. Petitioner has now filed a motion for reconsideration, asserting that the state's actions are unconstitutional and that a habeas corpus action is a more expedient way to obtain relief. Although I un derstan d petitioner's argument, it does not persuade me that I erred in dismissing his petition . Unlike the petitioner in Young v. Weston, 898 F. Supp. 744 (W.D. Wash. 1995), petitioner does not allege that he is being held in custody under a facially unconstitutional statu te. What he alleges is that state officials are violating the statute by housing him and o th er Chapter 980 detainees prisoners in a correctional facility instead of a treatment facility. As I stated in the December 11 order, this is a challenge to the conditions of his

co n fin em en t and not to the fact of his confinement. So understood, the claim is not one ov er which this court has jurisdiction under 28 U.S.C. § 2254. In the alternative, petitioner asks the court to grant him a certificate of appealability. T o obtain a certificate of appealability, the applicant must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 2 7 4 , 282 (2004). This means that "reasonable jurists could debate whether (or, for that m atter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El v. Co ckrell, 537 U.S. 322, 336 (2003) (internal quotations and citations omitted). When, as in this case, a district court dismisses the petition on procedural grounds without reaching the underlying constitutional claims, the prisoner must show that the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable w h eth er the district court's procedural ruling is correct. Slack v. McDaniel, 529 U.S. 473, 48 4 (2000) (emphasis added). Although the rule allows a court to ask the parties to submit arguments on whether a certificate should issue, it is not necessary to do so in this case because the question is not a close one. Reasonable jurists would not debate the decision that habeas corpus relief is not available to challenge petitioner's transfer to the Wisconsin Resource Center.

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OR DER IT IS ORDERED that the motion of Charles Anderson for reconsideration is D EN IED and petitioner is DENIED a certificate of appealability. Petitioner may seek a certificate from the court of appeals under Fed. R. App. P. 22. Entered this 2 n d day of February, 2010. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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