Newhouse v. Beth
| Decision Date | 08 March 2021 |
| Docket Number | Case No. 19-cv-345-pp |
| Parties | MICHAEL E. NEWHOUSE, Petitioner, v. DAVID BETH, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER CONSTRUING PETITIONER'S "APPEAL OF HABEAS CORPUS" AS OBJECTION TO REPORT AND RECOMMENDATION (DKT. NO. 8), OVERRULING OBJECTION, ADOPTING JUDGE DUFFIN'S RECOMMENDATION (DKT. NO. 7), DENYING PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 1), DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY AND DISMISSING CASE
On March 7, 2019, the petitioner, representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2241 challenging his pretrial detention in the Kenosha County Jail in Kenosha County Case No. 16CF1420. Dkt. No. 1 at 1-4. On March 22, 2019, Magistrate Judge William Duffin granted the petitioner's motion to proceed without prepaying the filing fee, screened the petition and recommended that this court deny it. Dkt. No. 7. Judge Duffin's order indicated that written objections to his report and recommendation were due within fourteen days of service of his order on the petitioner. Id. at 3.
On April 11, 2019, the court received from the petitioner a document titled "Appeal of Habeas Corpus." Dkt. No. 8. The first sentence of this document states that "Magistrate Judge William E. Duffin did not view the main date of both Wisconsin and United Sates Constitutional Law violations which by words of conduct from Judge Bruce E. Schroeder on 2/4/19 which exude constitutional violations with bias and prejudice." Id. at 1. The court construes this document as an objection to Judge Duffin's report and recommendation.
Judge Duffin did not commit clear error in recommending that the court dismiss the petition. This order overrules the petitioner's objection, adopts the recommendation for dismissal with an explanation of this court's basis for dismissal, dismisses the petition and declines to issue a certificate of appealability.
The petition, filed March 7, 2019, is hard to follow. The petitioner completed the section of the form petition for individuals who are challenging their illegal pretrial detention. Dkt. No. 1 at 4. He described the charges he faced as follows:
Opperating a Vehicle without Owners Consent *This Court is going to chapter [illegible] by miss information + lyes w/no Effective defense Counsel No Substantative due process Rights or Constitutional protection.
Id. When asked for the date of arrest, the petitioner wrote:
On page 2, where the form asks petitioners to mark a box for the type of decision or action they are challenging, the petitioner marked the box for "other," and described the as follows:
Denial of WI. and U.S. Constitutional Rights and Protections ie . . . effective counsel for the Defendant. Arbitrary application of Law denies Substantitive due Process for any defense So Admitted by Judge Schroeder 2/4/19 on the Record.
Dkt. No. 1 at 2. In the space provided to describe the "[d]ate of decision or action," the petitioner wrote, Id. When asked if there was a hearing of any kind, the petitioner marked the "Yes" box, and wrote:
When asked to describe the "First Hearing," the petitioner provided a date of February 4, 2019, and wrote:
Petitioner had to go on Record stating Attorney Bihler was NOT vested in his best interest, also the court has not allowed and of my turn of events on the table, asking why my constitutional rights are not protected Judge Schroeder responded, "You have a History, SHUTUP your $2000 bond is revoked and is now $100,000.
Id. at 2. When asked to describe the "Second Hearing," the petitioner provided a date of February 20, 2019, along with the notation, "(psych eval challenge, Iask for second, to see Truth!)." Id. In the space for describing the result of the hearing, the petitioner wrote:
I again asked Attorney Bihler for the States Discovery to which he lies saying he gave me and Added I never signed for Illinois. Attorney Bihler set up a psych eval once I stated for him to stop quizing [sic] me over information given twice over (seriously) the Attorney spoke as if I were an adolescent.
Id. Next to the word "Illinois," the petitioner wrote and circled the word "False." Id.
In the space provided for "future hearings," the petitioner wrote "3/13/19 status challenge (w/no Representation)." Id. The petitioner struck through the typed language on the form that read "If no, and you are an immigration detainee, state why you are not in removal proceedings," and wrote:
In the "Grounds for Relief" section of the petition, the petitioner listed four grounds. For Ground One, he asserted that on February 4, 2019, he Dkt. No. 1 at 10. In the "supporting facts" for this ground, the petitioner discussed "Attorney Bihler" being given facts to dispute a report from the Lake County, Illinois Sheriff's Department, and asserted thatAttorney Bihler built a case against him and breached attorney-client privilege on the record to the court. Id. He asserted that a deputy sheriff "hauled [him] out" for saying as much and for trying to protect his rights. Id.
Under Ground Two, the petitioner wrote "that through out proceedings Judge Schroeder has not been fair or impartial, he has shown prejudice, admits on record 2/4/19 denial of rights." Id. The petitioner complained that he had hired "Attorney Ward" in January 2017, and that Ward had "drained all of Petitioners Funds $7500." Id. The petitioner stated that Ward never gave him discovery Id. He stated that after fourteen months he was transferred from Lake County, Illinois because he had hired an Illinois attorney who gave him discovery, indicating that he had "seen immediately" that his exculpatory evidence—all digital security footage booking corridor seg corridor and body cam requested was lost." Id. at 11. The petitioner then alleged that Judge Schroeder "persecuted" him about where his money had come from; while the petitioner argues that it was not the court's right to ask about this, he explains that he got the money from the estate of his brother, who died in 2014 on the petitioner's birthday. Id. The petitioner says that Ward withdrew after the petitioner told Ward he was having complications and nearly died from Hepatitis C. Id.
Under Ground Three, the petitioner wrote that Id. at 11. In the facts supportingthis ground, the petitioner mentions yet another attorney. He asserts ineffective assistance of counsel, arguing that he had no "face to face, other than court, no discoveries," and says that "Attorney Barth" told him to go get discovery himself. Id. He says that he needed to see the state's discovery and that Attorney Barth would not give it to him; he then discusses his need to move forward, medical treatment he needs, and his priorities for his health. Id.
Under Ground Four, the petitioner stated that "[i]t is more likely than not, my gut instinct is correct because everything is of the record—fact DA Robert Zapf on 12/27/16 by conflict of interest forwards to 'Special Prosecutor.'" Id. at 12. In the facts supporting this ground, the petitioner asserts that Robert Zapf "has a lifetime no contact as his family member got a free pass after coming after me with a gun in 1982 for a charge in 1977 (completed in 1982)." Id. at 12. The petitioner asserts that the "special prosecution" was a "personal vindication of which time has been served, all needs met. (Bias and Prejudice thru life)." Id. The petitioner asserts that he was denied substantive due process and that, as shown on the February 4, 2019 record, he had a judge and two lawyers working against him and that he was punished for knowing his basic rights and filing motions and complaints. Id.
As relief, the petitioner asked the court to investigate the record, vacate the charges with prejudice and "Investigate All improprieties since 12/27/2016 Robert Zapf Schroeders former Boss." Id. In two additional pages attached to the petition, the petitioner alleged that Judge Schroeder committed him to the Mendota Mental Health Institute on February 4, 2019 because the petitionertried to vindicate his rights, and that "Psychologist Rawski" told him that the judge could not commit the petitioner without going through Rawski. Id. at 15. He asked for a "second professional opinion." Id. at 16. He alleged that on August 9, 2018, Schroeder committed him to Mendota for filing...
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