Shaw v. COLUMBIA CORRECTIONAL INSTITUTION WARDEN - Document No. 4
Shaw v. COLUMBIA CORRECTIONAL INSTITUTION WARDEN - Document No. 4
Shaw v. COLUMBIA CORRECTIONAL INSTITUTION WARDEN - Document No. 4
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Case: 3:08-cv-00302-slc Document #: 4 Filed: 06/05/2008 Page 1 of 3
SERGIO SHAW,
Petitioner, ORDER
v. 08-cv-302-slc
Respondent.
Wisconsin, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. I have granted his petition for leave to proceed in forma pauperis in a separate order.
The petition is before the court for preliminary review pursuant to Rule 4 of the Rules
prison sentence, together with a three-year term of extended supervision for a February 2007
conviction in the Circuit Court for Waukesha County on one count of battery by a prisoner.
Petitioner contends that he is entitled to habeas relief because prison officials extended his
mandatory release date incorrectly under Wis. Admin. Code DOC § 303.84. Heck v.
Dockets.Justia.com
Case: 3:08-cv-00302-slc Document #: 4 Filed: 06/05/2008 Page 2 of 3
Humphrey, 512 U.S. 477, 481 (1994) (habeas corpus is exclusive remedy for state prisoner
It is well established that a prisoner seeking a writ of habeas corpus must exhaust his
state remedies before seeking federal relief. Moleterno v. Nelson, 114 F.3d 629, 633 (7th
Cir. 1997) (citing cases). Principles of comity require that the habeas petitioner present his
federal constitutional claims initially to the state courts in order to give the state the
“‘opportunity to pass upon and correct alleged violations of its prisoners' federal rights.”’
Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275
(1971) (internal quotation marks omitted)). Claims are exhausted when they have been
presented to the highest state court for a ruling on the merits of the claims or when state
remedies no longer remain available to the petitioner. Engle v. Isaac, 456 U.S. 107, 125 n.
28, 1570 n. 28 (1982); 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to have
exhausted the remedies available in the courts of the State . . . if he has the right under the
law of the State to raise, by any available procedure, the question presented”).
When a petitioner raises claims that have not been exhausted in state court and state
remedies remain available, the federal court must dismiss the petition without prejudice to
allow the petitioner to return to state court. Rhines v. Weber, 544 U.S. 269, 274 (2005);
Rose v. Lundy, 455 U.S. 509, 510 (1982). After exhausting his claims in state court, the
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Case: 3:08-cv-00302-slc Document #: 4 Filed: 06/05/2008 Page 3 of 3
petitioner may then re-present his claims to the federal court in a new habeas petition,
assuming he does not run afoul of the statute of limitations. Rhines, 544 U.S. at 275.
It is clear from the petition that petitioner has not challenged the decision regarding
his mandatory release date either administratively or in state court. Petitioner must first
exhaust his administrative remedies and, after obtaining a final decision, challenge that
determination in state court. Once petitioner has completed that process and has exhausted
the state court appellate process, he may return to federal court if he can state a
ORDER
IT IS ORDERED that the petition of Sergio Shaw for a writ of habeas corpus is
DISMISSED WITHOUT PREJUDICE for petitioner’s failure to exhaust his state court
remedies.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge