Summary
This Eastern District of Wisconsin order denies a pro se petitioner's 28 U.S.C. § 2254 habeas corpus petition as premature because the underlying state court criminal case has not yet concluded with sentencing and entry of judgment. The court further determines that the petitioner has not exhausted available state appellate remedies and declines to issue a certificate of appealability. Related motions to consolidate, address sealed filings, and schedule a status conference are denied as moot.
Topics
Practice areas
Questions Presented
- Whether petitioner is "in custody pursuant to the judgment of a State court" for purposes of 28 U.S.C. §2254.
- Whether petitioner has exhausted his available state‑court remedies.
- Whether the district court may consolidate two separate state criminal proceedings.
- Whether the petition is premature and therefore subject to dismissal.
- Whether a certificate of appealability should be issued.
Holdings
- The petition is dismissed because the state court has not entered a judgment of conviction and therefore petitioner is not in custody pursuant to such a judgment.
- Petitioner has not exhausted state remedies; the petition must be dismissed.
- The court lacks authority to merge or consolidate the two state cases; the consolidation motion is denied as moot.
- Certificate of appealability is denied because petitioner failed to make a substantial showing of a constitutional right.
Key quotations
“Because the Ozaukee County Circuit Court has not yet entered judgment. That is because although the jury convicted the petitioner in Ozaukee County Case No. 24CF261, the state court has not yet imposed sentence.” (at 1)
“The exhaustion doctrine requires a petitioner to use all available state procedures to pursue his claim before seeking federal habeas corpus relief.” (at 6)
Factual background
Petitioner was convicted of two stalking counts in Ozaukee County Circuit Court on June 6, 2025; sentencing was scheduled for August 20, 2025. No judgment of conviction had been entered because sentencing had not occurred. Petitioner filed multiple pro se motions in state court and sought federal habeas relief alleging double jeopardy, speedy trial, and other constitutional claims.
Procedural history
Petitioner previously filed a §2254 petition (Case No. 25‑cv‑525) that was dismissed; he subsequently filed the present petition alleging double jeopardy, speedy trial, and other constitutional violations. The district court screened the petition and found it premature and lacking exhaustion of state remedies, and denied the petition, the certificate of appealability, and related motions as moot.