Knowlin v. Tegels, Case No. 19-cv-261-pp

• Decision Date: 07 July 2020
• Docket Number: Case No. 19-cv-261-pp
• Parties: LEE KNOWLIN, Petitioner, v. LIZZIE TEGELS, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

LEE KNOWLIN, Petitioner, v. LIZZIE TEGELS,¹ Respondent.

Case No. 19-cv-261-pp

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

July 7, 2020

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 33), DENYING PETITIONER'S MOTION FOR RECONSIDERATION OF HABEAS CORPUS ORDER (DKT. NO. 26), DENYING PETITIONER'S NOTICE OF MOTION AND EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION (DKT. NO. 37), DENYING PETITIONER'S NOTICE OF MOTION AND MOTION FOR BAIL PENDING RESOLUTION OF HABEAS CORPUS PROCEEDINGS (DKT. NO. 38), DENYING PETITIONER'S SUPPLEMENTAL EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION (DKT. NO. 45), GRANTING PETITIONER'S MOTION TO EXPEDITE NON-DISPOSITIVE MOTIONS (DKT. NO. 51), DISMISSING CASE AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

On February 19, 2019, the petitioner, representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his parole revocation. Dkt. No. 1. The court will grant the motion to dismiss because the petitioner procedurally defaulted his claims. He failed to fairlypresent the claims to the Wisconsin appellate courts, and the Racine County Circuit Court relied on an adequate and independent state-law ground in denying relief.

I. Background

A. State Case

In June of 2000, a Racine County jury convicted the petitioner of armed burglary and carrying a concealed weapon. Dkt. No. 34-1; see also State v. Knowlin, Racine County Circuit Court, Case No. 99CF000617 (available at https://wcca.wicourts.gov). Six months later, the court sentenced the petitioner to twenty years for the armed burglary count and one year for the concealed weapon count, consecutive to the armed burglary count. Dkt. No. 34-1. In April of 2017, the state released the petitioner on parole. Dkt. No. 21-1 at 73.

B. Revocation

In November 2018, the Department of Corrections recommended revocation of the petitioner's parole based on several allegations of parole violations. Id. at 19-26. The DOC agent alleged that between October of 2017 and October of 2018, the petitioner (1) "legally change[d] his name . . . and failed to report [the] change to his agent;" (2) "fail[ed] to inform his agent of a change in employment;" (3) "force[d] Cindy Elmore to perform oral sex on him;" (4) "grab[bed] Cindy Elmore by the hair and pull[ed] her out of a vehicle;" (5) "fail[ed] to report to his agent;" (6) "refus[ed] to submit to a urinalysis at the Brown County Jail;" (7) "arrang[ed] for Michelle Stuckart to have sex withpeople in exchange for money;" and (8) "[took] money earned by Michelle Stuckart by having sex with people in exchange for money." Id. at 19. In response to these allegations, the petitioner appeared with counsel on December 6, 2018 for a parole revocation hearing before an administrative law judge for the Wisconsin Division of Hearings and Appeals. Id. at 72.

On December 21, 2018, the ALJ issued a decision revoking the petitioner's parole. Id. at 78. The ALJ, agreeing with the DOC, found that the petitioner had committed the conduct alleged except for Allegation 6. Id. at 73-76. The DOC had recommended "a little over [two] years re-confinement time," which the ALJ found "inadequate for these violations." Id. at 77. The ALJ found that "[a]nything less than the maximum would unduly depreciate the seriousness of the violations," and ordered the petitioner "re-confined for all the time he ha[d] remaining"—three years, eight months and six days. Id. at 73, 77.

Under Wis. Admin. Code §HA 2.05(8)(A), the petitioner had ten days to appeal the ALJ's decision to the administrator of the DHA. On January 9, 2019, the petitioner, through counsel, appealed the decision of the ALJ to DHA Administrator Brian Hayes. Id. at 79. The petitioner argued that (1) he "took responsibility for his actions and admitted Violation [Five];" (2) the DOC "ha[d] not met its burden of proof regarding the remaining alleged Violations;" (3) "[the petitioner's] right to confront the witnesses against him ha[d] been violated and good cause for not allowing confrontation ha[d] not been shown;" and (4) "the decision to revoke based upon the need to protect the public from furthercriminal activity, his behavior while on supervision, the need to provide treatment in a confined setting, and the alleged seriousness of the violations [was] not supported by the evidence." Id. at 80. On February 8, 2019, the Administrator affirmed the ALJ's decision. Id. at 87-88.

C. Federal Habeas Background

About a week after the Administrator affirmed the ALJ's decision to revoke the petitioner's parole, the petitioner filed a petition for writ of habeas corpus in the Eastern District of Wisconsin. Dkt. No. 1. The petitioner alleged that (1) he was denied his Sixth Amendment and due process rights because he was not allowed to confront Cindy Elmore on her testimonial statements at the revocation hearing; (2) he was denied his due process rights because the DOC failed to meet its burden of proof regarding all alleged parole violations; (3) he was denied his Confrontation Clause rights when Michelle Stuckart refused to answer defense counsel's questions at his revocation hearing; and (4) the rule of supervision he was alleged to have violated—the violation that formed the basis for his revocation—was vague and overbroad. Id. at ¶15.

Along with the petition, the petitioner filed a document entitled "Petitioner's Notice of Motion and Motion to Grant Relief Despite His Failure to Have Pursued a State Remedy Not Available to Him." Dkt. No. 2. The petitioner explained that "there are no available state judicial remedies available for [him] to challenge revocation of his parole." Dkt. No. 2 at 1. As this court's September 20, 2019 order described the motion:

[The petitioner] stated that in Wisconsin, the proper way to challenge a probation revocation is through a writ of certiorari. He wrote thathe was indigent, could not afford the filing fee for a writ of certiorari and could not get the filing fee waived because under Wis. Stat. §801.02(7)([d]), a state circuit court cannot waive a filing fee if the petitioner previously has had three or more actions dismissed for reasons listed in Wis. Stat. §802.05(3)(b) 1-4. The petitioner admitted that he has had three or more claims dismissed for reasons listed under Wis. Stat. §802.05(3)(b)1-4. He predicted that if he tried to file for a writ of certiorari in state court, he would not be allowed to proceed because of his indigency and his history of litigation.

The petitioner asked the court to find that he had properly exhausted his claim. In this motion, he stated that his habeas petition asserted that he was actually innocent of his parole violations.

Dkt. No. 24 at 4-5 (internal citation omitted).

At the end of February 2019, Magistrate Judge William Duffin granted the petitioner's motion for leave to proceed without prepaying the filing fee, denied the petitioner's motions for bail and for a stay of his revocation order and recommended that this court dismiss the petition because the petitioner had admitted that he had not exhausted his state court remedies. Dkt. Nos. 9, 10. Judge Duffin noted the petitioner's contention that he "[could not] pay the required costs and fees and the state court [would] not waive these expenses because at least three of his prior lawsuits were dismissed as frivolous." Id. at 2. While Judge Duffin found it "uncertain whether the state court [would] permit [the petitioner] to seek review of the revocation . . . without paying the associated costs and fees," he concluded that "[the petitioner] must seek redress in the state courts before turning to federal court." Id. On March 7, 2019, the petitioner timely objected to Judge Duffin's recommendation. Dkt. No. 13.

In the months following his objection, the petitioner continued to file documents. He filed (1) a supplemental objection, dkt. no. 15; (2) a motion to expedite court decision on his objection, dkt. no. 16; (3) a supplement, dkt. no. 17; (4) a brief in support of his motion for stay of revocation order and warrant, dkt. no. 18; (5) a second supplemental objection, dkt. no. 19; (6) an amended motion for bail, dkt. no. 20; (7) a memorandum of law with attached exhibit in support of his motion for bail, dkt. no. 21, (8) a supplemental memorandum of law in support of his amended motion for bail, dkt. no. 22; and (9) a motion to grant extraordinary writs, dkt. no. 23.

The petitioner filed a second petition for writ of habeas corpus in July of 2019. Knowlin v. Sheriff Grady Hartman, Case No. 19-cv-1046, Dkt. No. 1. He filed a motion for leave without prepaying the filing fee for that case, dkt. no. 2, and a motion to disqualify the judge, dkt. no. 6. In September of 2019, this court denied those motions. Dkt. No. 8. Simultaneously, the court dismissed that petition because it did not state a ground for habeas relief. Id.

After Judge Duffin issued his report and recommendation, the petitioner belatedly attempted to exhaust his state court remedies. Dkt. No. 24 at 7; see also dkt. nos. 19, 19-1, 34-2, 34-3, 34-4; Lee Knowlin v. Brian Hayes, Racine County Case Number 19-IP-05, available at: https://wcca.wicourts.gov/ (last visited June 25, 2020). Specifically, he filed a "Petition for Writ of Certiorari/Petition for Writ of Habeas Corpus" in the Racine County Circuit Court. Dkt. No. 34-4; see also dkt. no. 34-2. The state petition asserted that (1) the decision to revoke the petitioner's parole was unreasonable; (2) the rule ofsupervision the DOC accused the petitioner of violating did not provide adequate notice; and (3) the ALJ and the Administrator denied the petitioner his Due Process rights when they denied him the opportunity to confront witnesses, did "not present sufficient evidence . . . in regards to all of the alleged parole violations" and "revoked his parole on appeal for human trafficking and absconding." Dkt. No....