Ellis J. Spates v. Troy Smith

Summary

The United States District Court for the Eastern District of Wisconsin dismissed Ellis J. Spates’s petition for a writ of habeas corpus under 28 U.S.C. § 2254 without prejudice because he had not exhausted his state remedies. The court granted leave to proceed without prepayment of the filing fee and denied a certificate of appealability.

Holdings

1. The petitioner failed to exhaust his state remedies because the record did not establish that the Wisconsin Supreme Court had ruled on his petition for review.
2. An unexhausted habeas petition ordinarily must be dismissed without prejudice.
3. A certificate of appealability was denied because no reasonable jurist could debate whether the petition should have been dismissed for failure to exhaust.
4. The petitioner was permitted to proceed without prepayment of the $5 filing fee because his trust account statement showed that he was unable to pay.

Questions Presented

1. Whether the petitioner exhausted available state remedies before seeking federal habeas relief under 28 U.S.C. § 2254.
2. Whether the petition should be dismissed without prejudice under Rule 4 for failure to exhaust state remedies.
3. Whether the petitioner was entitled to a certificate of appealability.
4. Whether the petitioner should be permitted to proceed without prepayment of the filing fee.

Disposition

dismissed