Ziegler, Jeffrey v. State of Wisconsin

Filing 8

Transmission of Notice of Appeal, Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 6 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Docket Sheet) (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JEFFREY T. ZIEGLER,
Petitioner,

OPINION AND ORDER

v.

14-cv-325-wmc

STATE OF WISCONSIN,
Respondent.

Jeffrey T. Ziegler has filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254, challenging two state court convictions from Dane County. Ziegler has paid the
filing fee and the petition is now before the court for preliminary review pursuant to Rule
4 of the Rules Governing Section 2254 Cases. For reasons set forth briefly below, the
petition must be dismissed.

FACTS
In Dane County Case No. 03CF2548, Ziegler was convicted upon his plea of no
contest to charges of stalking and bail jumping as a repeat offender. In Dane County
Case No. 03CM3691, Ziegler was similarly convicted of invasion of privacy. On August
31, 2006, Ziegler was sentenced to serve two years and six months in prison, followed by
a two-year term of supervised release, for a total sentence of four-and-a-half (4½) years in
Case No. 03CF2548. On that same day, the circuit court sentenced Ziegler to serve one
year in prison followed by a one-year period of extended supervision for a total sentence
of two years in Case No. 03CM3691, both consecutive to the sentence that he received in

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03CF2548.
Ziegler filed a motion for post-conviction relief from the judgment, arguing that he
was denied effective assistance of counsel.

After the trial court denied that motion,

Ziegler pursued a direct appeal. On January 22, 2010, the Wisconsin Court of Appeals
summarily affirmed the convictions, as well as the trial court’s decision to deny Ziegler=s
motion for post-conviction relief.

The Wisconsin Supreme Court denied Ziegler=s

petition for review on July 26, 2010.
On May 2, 2014, Ziegler filed this pending federal habeas corpus petition seeking
relief from Case Nos. 03CF2548 and 03CM3691 under 28 U.S.C. § 2254, apparently
claiming that he is entitled to relief because: (1) his plea was invalid; (2) he was denied
effective assistance of counsel; (3) he was denied sentence credit; (4) his punishment
violated the prohibition against double jeopardy; and (5) the state court erred by failing
to hold an evidentiary hearing on these claims.

OPINION
The federal habeas corpus statutes give district courts limited jurisdiction to
entertain petitions for habeas corpus relief from persons who are “in custody in violation of
the Constitution or laws or treaties of the United States.”

28 U.S.C. § 2241(c)(3)

(emphasis added); 28 U.S.C. § 2254(a). Moreover, for this jurisdiction to attach, the
Supreme Court has clarified that a habeas corpus petitioner must be “in custody” at the
time the petition is filed. Carafas v. LaVallee, 391 U.S. 234, 238 (1968).

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For jurisdiction purposes, the importance of a petitioner’s custody status cannot be
minimized.

The custody element is “required not only by repeated references in the

[federal habeas corpus statutes], but also by the history of the great writ.” Carafas, 381
U.S. at 238 (footnotes and internal citations omitted).

“Its province, shaped to

guarantee the most fundamental of all rights, is to provide an effective and speedy
instrument by which judicial inquiry may be had into the legality of the detention of a
person.” Id. (citing Peyton v. Rowe, 39 U.S. 54 (1968)); see also Brown v. Allen, 344 U.S.
443, 533 (1953) (Jackson, J., concurring) (“The historic purpose of the writ has been to
relieve detention by executive authorities without judicial trial”).
While petitioner has provided a copy of the judgments in Case Nos. 03CF2548
and 03CM3691, these exhibits show that the sentences received in those cases have both
been discharged.

Specifically, petitioner was sentenced on August 31, 2006, to

consecutive sentences of imprisonment and extended supervision totaling six-and-a-half
years.

Thus, the sentence of imprisonment and supervision in Case No. 03CF2548

expired in 2011, while the consecutive sentence of imprisonment and supervision in
03CM3691 expired in 2013.
The Supreme Court has held that a petitioner is not in custody for purposes of
federal habeas corpus review once the challenged sentence has fully expired. See Maleng v.
Cook, 490 U.S. 488, 492 (1989). While the petitioner refers to being held on “Parole” in
Dane County, Wisconsin, he does not identify any state official in charge of his custody
or allege facts showing that he is otherwise restrained as a result of these challenged

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convictions. Under these circumstances, the federal writ of habeas corpus is not available
to review his convictions. See Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 401
(2001).

Accordingly, his petition must be dismissed for lack of subject matter

jurisdiction under the federal habeas corpus statutes. See Maleng, 490 U.S. at 492-93.
Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue or
deny a certificate of appealability when entering a final order adverse to petitioner. A
certificate of appealability will not issue unless the petitioner makes “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires a
petitioner to demonstrate “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Under the

controlling standard, this requires a petitioner to show “that reasonable jurists could
debate whether (or, for that matter, 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, 537 U.S. at 336.

Where denial of relief is based on

procedural grounds, the petitioner must show not only that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right,”
but also that they “would find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484.
Although Rule 11 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

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not a close one.

For the reasons stated above, reasonable jurists would not debate

whether the court’s ruling was correct.

Therefore, no certificate of appealability will

issue.
ORDER
IT IS ORDERED that:
1. The federal habeas corpus petition filed by Jeffrey T. Ziegler is
DISMISSED for lack of subject matter jurisdiction.
2. A certificate of appealability is DENIED. Petitioner may seek a
certificate from the court of appeals under Fed. R. App. P. 22.
Entered this 3rd day of April, 2017.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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