Simpson, Willie v. Litscher, Jon et al

Filing 67

ORDER that this case is dismissed for plaintiff Willie Simpson's failure to state a claim upon which relief may be granted. The clerk of court is directed to enter judgment in favor of defendants and close the case. Signed by District Judge James D. Peterson on 8/27/2020. (rks),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

WILLIE SIMPSON,
Plaintiff,

OPINION and ORDER

v.
18-cv-467-jdp
TONY EVERS and KEVIN A. CARR,
Defendants.
Plaintiff Willie Simpson, appearing pro se, is a prisoner at Green Bay Correctional
Institution (GBCI). Simpson alleges that defendants Governor Tony Evers and DOC Secretary
Kevin Carr maintain state laws and policies that prohibit him from receiving a parole hearing
or release that he is entitled to for his convictions under previous Wisconsin sentencing law.
Id. In my order screening Simpson’s complaint, I concluded that he failed to state claims for
relief because he did not plausibly explain how his rights were being violated. Dkt. 60. But I
gave him a chance to supplement his complaint to explain how his rights are violated under
the current sentencing regime. Simpson has provided the supplement, Dkt. 61, but it does not
change my conclusion.
Simpson alleges that Wisconsin’s “truth in sentencing” reforms in the late 1990s
retroactively altered his ability to be paroled, in violation of the Ex Post Facto and Due Process
clauses of the United States Constitution. Simpson has three sexual-assault convictions under
the state’s prior sentencing regime, known informally as the “New Law,” which applied to
offenses committed before December 31, 1999. For those convictions Simpson was sentenced
to three consecutive sentences totaling 65 years of incarceration. Under the New Law, Simpson

is first eligible for parole at 25 percent of his sentence, and he is entitled to mandatory release
at two-thirds of his sentence. He’s not guaranteed parole at his first eligibility.
Simpson also has convictions in three cases for offenses committed while incarcerated.
The resulting sentences are governed by the truth-in-sentencing regime, which applies to
offenses committed on or after December 31, 1999. For those convictions Simpson got
consecutive sentences totaling about 16 years confinement. Simpson is not eligible for parole
on any of these sentences, nor is he entitled to mandatory release before serving these sentences
entirely.
Simpson first theory is that because of changes to Wisconsin law under the truth-insentencing regime, prison officials refuse to release him at his mandatory release date for any
of his three New Law sexual-assault convictions. I concluded that Simpson was incorrect about
the truth-in-sentencing law altering the availability of mandatory release: even under the
previous New Law regime, mandatory release is available at two-thirds of his total sentence,
not at two-thirds of each individual sentence making up his long consecutive New Law
sentence. Dkt. 60, at 4.
Simpson’s second theory of relief is that the addition of his 2011 and 2012 sentences—
subject to the truth-in-sentencing laws—eliminated his right to parole hearings after one-fourth
of his New Law sentence time. I took him to be saying that this will force him to serve his
entire 65-year New Law sentence and his full initial-confinement time on his new convictions
before he is eligible for release to extended supervision.
Simpson has filed a supplement, Dkt. 61, along with materials in support, Dkt. 62,
including his various judgments of conviction, a sentence-computation worksheet, and a
document titled “Wisconsin Prisoner Reentry Programs” that discusses how truth-in-

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sentencing laws work. Again, he appears to assume that the truth-in-sentencing law now applies
to his entire collective sentence because some of his sentences came after truth-in-sentencing
was enacted. But none of the authorities he cites or materials he submits support his theory
that parole hearings, or parole consideration, are denied to prisoners who incur truth-insentencing convictions on top of their existing New Law convictions. As I stated in my previous
order, the state’s inmate locator website shows that Simpson has a parole eligibility date of
October 12, 2020.1 Because of the severity of his crimes, and because Simpson has committed
additional crimes while incarcerated, he is unlikely to be granted parole at his first eligibility.
But there’s no reason to think that Simpson will be deprived of parole consideration as
provided under the New Law sentencing regime, which governs his sexual assault sentences.
Because Simpson fails to state a claim upon which relief may be granted, I’ll dismiss
this case.

ORDER
IT IS ORDERED that:
1. This case is DISMISSED for plaintiff Willie Simpson’s failure to state a claim upon
which relief may be granted.
2. The clerk of court is directed to enter judgment in favor of defendants and close the
case.
Entered August 27, 2020.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
1

See https://appsdoc.wi.gov/lop.

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