Trepania, Trent v. Manning, Lynelle et al

Filing 5

ORDER that Trent Trepania's petition for a writ of habeas corpus under 28 U.S.C. § 2254 is DISMISSED without prejudice to Trepania's refiling it after exhausting his state-court remedies. Signed by District Judge James D. Peterson on 4/27/2021. (lam),(ps)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN TRENT TREPANIA, Petitioner, v. LYNELLE J. MANNING and NICHOLE M. STROM, OPINION and ORDER 21-cv-39-jdp Respondents. Petitioner Trent Trepania is in custody at the Washburn County jail. He has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, Dkt. 1, and he has been granted leave to proceed in forma pauperis, Dkt. 4. The next step is for me to conduct a preliminary review of his petition under Rule 4 of the Rules Governing Section 2254 Cases. Trepania was convicted of burglary in 2012 in Sawyer County case number 11CF171, with four other charges dismissed but read in.1 He was released on extended supervision, but his extended supervision was revoked on December 18, 2020. Trepania challenges the revocation for three reasons: (1) his extended supervision was revoked in retaliation for his successful challenge to an earlier attempt at revocation; (2) he was punished multiple times for the same offense because while he was confined, he was placed in segregation for the same conduct that led to revocation; and (3) the order to detain him wasn’t issued until more than two months after the conduct that led to revocation. A prisoner is required to exhaust any available state-court remedies before filing a petition in federal court under § 2254. 28 U.S.C. § 2254(b)(1)(A). To exhaust his state-court 1 Records of Trepania’s state-court proceedings are available at Wisconsin Circuit Court Access, remedies, Trepania must present his claims through “at least one complete round of state-court review.” Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014). A “complete round of statecourt review” means that Trepania must assert his claims “at each and every level in the state court system, including levels at which review is discretionary rather than mandatory.” Id. Trepania says in his petition that he didn’t attempt to appeal the revocation because he wasn’t certain whether any such remedy was available. Dkt. 1, at 2. But a state-court remedy was available to Trepania. Under Wisconsin law, a probationer who has been accused of violating a condition of extended supervision is entitled to a hearing with the Department of Administration’s Division of Hearings and Appeals before extended supervision is revoked. Wis. Stat. § 302.113(9)(ag), (am). If the probationer doesn’t waive his hearing and the hearing results in revocation, the probationer may appeal the revocation order to a Wisconsin circuit court within 45 days. Wis. Stat. §§ 302.113(9)(g), 893.735(2); see also Britton v. Mitchell, No. 12-CV-757-JPS, 2012 WL 3279209, at *1–2 (E.D. Wis. Aug. 10, 2012) (explaining hearing and appeal process). Trepania doesn’t say in his petition whether he waived his right to a hearing before the Division of Hearing and Appeals, but either way, he hasn’t exhausted his state-court remedies. If he had a hearing, then he had the right to appeal the revocation in state court, which he hasn’t done. If he waived his right to a hearing, then he chose to forego his administrative and state-court remedies. See Martinez v. Langford, No. CV 16-00360-TJH, 2017 WL 4163289, at *3 (C.D. Cal. Jan. 11, 2017) (“Rather than requesting a [parole revocation] hearing and presenting his claim at the administrative level, petitioner accepted the expedited revocation proposal, and thereby waived his right to a hearing and an appeal” and thus “cannot now use a federal habeas petition to challenge the decision.”). And if Trepania waived his right to a 2 hearing but wishes to challenge his waiver, such a claim must also be exhausted in state court. See Brooke v. Warden, Carbon Cty. Corr. Facility, No. 1:11-CV-0463, 2011 WL 1397600, at *3 (M.D. Pa. Apr. 13, 2011) (“[If petitioner] subsequently changed his mind about waiving his right to that preliminary hearing, he would be required to seek relief through his counsel in state court before filing a petition with this Court challenging his confinement.”). Because Trepania may still have remedies available to him in state court, I will dismiss his petition without prejudice. Trepania may file a new petition in this court under § 2254 only after he completes state-court review of each claim he wishes to pursue, up to and including the Wisconsin Supreme Court. Under Rule 11 of the Rules Governing Section 2254 Cases, I must issue or deny a certificate of appealability when entering a final order adverse to a petitioner. But a dismissal without prejudice is not a final order, Gacho v. Butler, 792 F.3d 732, 733 (7th Cir. 2015), so no certificate of appealability is required. ORDER IT IS ORDERED that Trent Trepania’s petition for a writ of habeas corpus under 28 U.S.C. § 2254 is DISMISSED without prejudice to Trepania’s refiling it after exhausting his state-court remedies. Entered April 27, 2021. BY THE COURT: /s/ ________________________________________ JAMES D. PETERSON District Judge 3

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