Opinion
Case No. 07-C-341.
April 24, 2007
ORDER
Wallace Burks filed this petition pursuant to 28 U.S.C. § 2254, asserting that his revocation was imposed in violation of the Constitution. He is currently incarcerated at Jackson Correctional Institution.
I must give the case prompt initial consideration pursuant to Rule 4 of the Rules Governing § 2254 Cases, which reads:
If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified. Otherwise the judge shall order the respondent to file an answer.
Rule 4, Rules Governing § 2254 Cases. During my initial review of habeas petitions, I look to see whether the petitioner has set forth cognizable constitutional or federal law claims and exhausted available state remedies.
The petitioner's claims are not abundantly clear. He contests the revocation of his parole on January 4, 2007, alleging that it amounts to double or triple jeopardy and an excessive sentence because the entirety of his sentence had already been completed by that time. He also invokes the separation of powers and claims his revocation counsel was ineffective. Although he challenged his revocation in state agency proceedings and in the state courts, it is not clear that he has properly exhausted his state remedies.
Ultimately, regardless of how the petitioner styles his claims, his contention is that he is in custody wrongfully. If the state erroneously revoked the petitioner, that could implicate his liberty interest under the Due Process Clause. He will therefore be allowed to proceed on that general claim.
Petitioner filed with his petition a request to proceed in forma pauperis. Under Rule 3 of the Rules Governing § 2254 Cases, the petitioner is required to file an affidavit of indigence as required by § 1915. He has done so, and I am satisfied that he lacks sufficient funds to proceed here. Accordingly, his request to proceed without prepayment of costs will be granted.
THEREFORE, IT IS ORDERED that within 30 days of the date of this order respondent shall either file an appropriate motion seeking dismissal or answer the petition, complying with Rule 5 of the Rules Governing § 2254 Cases, and showing cause, if any, why the writ should not issue.
FURTHER, IT IS ORDERED that unless respondent files a dispositive motion in lieu of an answer the parties shall abide by the following schedule regarding the filing of briefs on the merits of petitioner's claims: (1) petitioner shall have 45 days following the filing of respondent's answer within which to file his brief in support of his petition; (2) respondent shall have 45 days following the filing of petitioner's initial brief within which to file a brief in opposition; and (3) petitioner shall have 30 days following the filing of respondent's opposition brief within which to file a reply brief, if any.
If respondent files a dispositive motion in lieu of an answer, this briefing schedule will be suspended and the briefing schedule will instead be as follows: (1) petitioner shall have 30 days following the filing of respondent's dispositive motion and supporting initial brief within which to file a brief in opposition; and (2) respondent shall have 15 days following the filing of petitioner's opposition brief within which to file a reply brief, if any.
Pursuant to Civil L.R. 7.1(f), the following page limitations apply: briefs in support of or in opposition to the habeas petition or a dispositive motion filed by respondent must not exceed thirty pages and reply briefs must not exceed fifteen pages, not counting any statements of facts, exhibits, and affidavits.
FURTHER, IT IS ORDERED that petitioner's request for leave to proceed in forma pauperis is GRANTED.
Petitioner is advised that he must send copies of all future filings with the court to counsel for respondent. Until respondent files his or her answer, these copies should be sent to Gregory Weber at the address below.
Pursuant to Rule 4 of the Rules Governing § 2254 Cases, copies of the petition and this order will be mailed to respondent and to the Attorney General for the State of Wisconsin, c/o Gregory M. Weber, Assistant Attorney General, P.O. Box 7857, Madison, WI 53707.
This district's form regarding magistrate judge jurisdiction should be included with copies of this order and returned by the parties as directed on that form.