Shaw, Terrance v. Kemper, Paul

Filing 4

ORDER denying Terrance Shaw's 1 Petition for Writ of Habeas Corpus without prejudice for failure to exhaust his state court remedies. A certificate of appealability is DENIED. Signed by District Judge William M. Conley on 6/15/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TERRANCE J. SHAW,
Petitioner,

OPINION AND ORDER

v.

16-cv-661-wmc

PAUL KEMPER,
Respondent.

Petitioner Terrance J. Shaw has filed an application for a writ of habeas corpus under
28 U.S.C. § 2254. He has paid the $5 filing fee. The petition is before the court for
preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Rule 4
requires the court to examine the petition and supporting exhibits and dismiss a petition
if it “plainly appears” that petitioner is not entitled to relief.

If the petition is not

dismissed, then the court orders respondent to answer or otherwise respond to the petition.
In his petition, petitioner seeks to challenge a May 27, 2016, decision by the
Wisconsin Parole Commission denying his request for parole. In denying his parole, the
Commission found, among other reasons, that petitioner (1) had not yet served sufficient
time for punishment of his crimes of first degree murder and first degree sexual assault,
and (2) had failed to complete sexual offender treatment programming.

Petitioner

contends that the first reason -- lack of sufficient time in prison for his crimes -- violates
his due process rights because it is based on too arbitrary and vague a standard to pass

1

constitutional muster. Petitioner contends the second justification -- failure to complete
programming -- is unfair because the only reason petitioner has not been able to complete
programming is because he has been attempting to challenge his criminal convictions in
Wisconsin state courts. He argues that it is unfair to punish him for exercising his rights
to challenge his convictions.
After reviewing petitioner’s arguments, it is clear that his petition must be denied
because petitioner concedes that he failed to exhaust any of his state court remedies before
filing suit.
OPINION
To be entitled to a writ of habeas corpus, a state prisoner must show that he is “in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Under Rule 4, the district court may dismiss a petition summarily if it
determines that the petition “raises a legal theory that is indisputably without merit.”
Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993).
Petitioner concedes in his petition that he has not sought to challenge the parole
commission’s decision in state court. It is well-established that a petitioner challenging a
state court conviction or sentence must raise his constitutional claims in state court before
seeking federal habeas relief. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S.
838, 844 (1999) (state prisoner must present claims to state court before he make seek
federal habeas review). Although petitioner states that there is no state court procedure

2

for challenging parole commission decisions, he is mistaken. He may challenge a parole
commission decision by filing a state court action for a writ of certiorari. See, e.g., State ex
rel. Britt v. Gamble, 2002 WI App 238, ¶ 15, 257 Wis.2d 689, 653 N.W.2d 143 (parole
commission’s refusal to grant discretionary parole is reviewable by common law certiorari).
Because petitioner has failed to exhaust state court remedies, his petition will be dismissed
without prejudice.
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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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. For the reasons already
stated, the petition is being dismissed because petitioner failed to exhaust his state court
remedies. Because reasonable jurists would not otherwise debate whether a different result
was required, no certificate of appealability will issue.
ORDER
IT IS ORDERED that Terrance Shaw’s habeas corpus petition is DISMISSED
without prejudice for failure to exhaust his state court remedies. A certificate of
3

appealability is DENIED. If petitioner wishes he may seek a certificate from the court of
appeals under Fed. R. App. P. 22.
Entered this 15th day of June, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

4