Johnson v. Symdon

PRIEST JOHNSON, Petitioner, v. DENISE SYMDON, Respondent.

Case No. 14-CV-879

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

April 24, 2015

DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DISMISSING CASE

The petitioner, Priest Johnson ("Johnson"), who is currently incarcerated at the Racine Correctional Institution, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Habeas Petition, Docket # 1.) Although Johnson is currently incarcerated, he is not challenging his underlying conviction or his revocation proceeding. Rather, he challenges the various restrictions placed on him while on community supervision. Johnson concedes that his claims are procedurally defaulted. (Petitioner's Br. at 3, Docket # 11.) Thus, the question presently before me is whether Johnson has shown that he satisfies one of the exceptions to procedural default. After careful consideration of the applicable facts and law, I have determined that he has not. Accordingly, his claims are procedurally defaulted and must be dismissed.

BACKGROUND

Johnson was convicted after a bench trial in Milwaukee County Case No. 98CF980328 of three counts of second-degree sexual assault of a child. (Answer to Habeas Petition ("Answer"), Judgment of Conviction, Exh. A, Docket # 10-1.) After his conviction, Johnson initiated a state court direct appeal but voluntarily dismissed the appeal in order to pursue a challenge to hissentence. (Resp.'s Br. at 3, Docket # 14.) This challenge ultimately reduced his consecutive terms of imprisonment from thirty to twenty years. (Answer, State v. Johnson, No. 00-0258-CR (Wis. Ct. App. Aug. 16, 2001), Exh. B, Docket # 10-2.) Johnson then restarted his direct appeal from his conviction, and the Wisconsin Court of Appeals affirmed his conviction in August 2001. (Id.) In September 2004, Johnson brought an unsuccessful postconviction motion challenging his conviction on several grounds. (Resp.'s Br., Exh. B at 4, Docket # 14-2.) The Wisconsin Court of Appeals affirmed the circuit court's denial of the postconviction motion in August 2006. (Answer, State v. Johnson, No. 2004AP2903 (Wis. Ct. App. Aug. 15, 2006), Exh. C, Docket # 10-3.) The Wisconsin Supreme Court dismissed Johnson's petition for review on November 2, 2006 for failure to file a statement in support of the petition. (Answer, Exh. D, Docket # 10-4.) These appeals addressed Johnson's underlying conviction and were completed prior to his revocation from supervised release. (Resp.'s Br. at 4.)

Johnson was ultimately released from prison on mandatory release parole, but was revoked in 2012 for violation of his release conditions. (Resp.'s Br. at 4 and Exh. B at 5.) Johnson filed two state court petitions for writs of habeas corpus in Milwaukee County Case Nos. 2012CV3608 and 2012CV7924. (Resp.'s Br. at 4.) Both petitions were denied in November 2012, and the court of appeals dismissed the appeals on July 11, 2013 for failure to file a brief. (Answer, Exh. E. at 3, Docket # 10-5, Resp. Br., Exh. A.) Johnson did not file a petition for review with the Wisconsin Supreme Court. (Resp. Br. at 5, Answer, Exh. E.)

While Johnson's appeal of the denial of his state habeas corpus petitions was pending, he filed a motion in Milwaukee County Case No. 98CF980328 requesting modification of the conditions of his supervision in March 2013. (Resp. Br. at 5 and Exh. B at 5.) Johnson challenged the conditionthat prohibited him from using a computer without prior agent approval. (Exh. to Habeas Petition at 12, Docket # 1-1.) Johnson argued that the rule was invalid because it had no relation to the crimes for which he was convicted and violated his First Amendment right to use a computer and the internet. (Id. at 13.) Johnson further argued that the rule prohibited him from doing research and preparing briefing related to his court of appeals cases and prevented him from communicating with family members stationed overseas. (Id.) The court denied the motion on May 13, 2013. (Resp. Br. at 5 and Exh. B at 6.) In denying Johnson's motion, the circuit court found that the Department of Correction's general rules of supervision were not subject to direct court review and needed to be appealed through administrative procedures. (Exh. to Habeas Petition at 13.) The circuit court further stated that while it was not obliged to address Johnson's First Amendment arguments, Johnson's case was distinguishable from the cases he raised because his case did not involve a court-imposed rule or a total ban on computer/internet use because Johnson could use a computer with prior agent approval. (Id. at 14.) Johnson did not appeal the circuit court's order. (Resp.'s Br. at 7 and Exh. B.)

Johnson sought administrative review of his challenges to his supervised release conditions. (Exh. to Habeas Petition at 2-7.) Johnson's requests were denied on December 11, 2013 and January 10, 2014. (Id. at 9-11.) Johnson did not seek judicial review of the administrative denial of his requests. (Resp. Br. at 8.) Johnson filed the instant petition for a writ of habeas corpus in this Court on July 24, 2014, alleging that the conditions of release limiting his computer access denied him access to the court and violated his rights under the First Amendment. The respondent argues that Johnson's federal habeas claims are barred by his procedural default. Johnson concedes that his claims are procedurally defaulted, but argues that the default is excused because the restrictionsplaced upon him denied him access to the courts. The matter is fully briefed and is ready for resolution. For the reasons stated below, Johnson's petition is denied.

ANALYSIS

1. Legal Standard

28 U.S.C. § 2254 requires a district court to make two inquiries before considering a petition for habeas corpus on its merits:

[W]hether the petitioner exhausted all available state remedies and whether the petitioner raised all his claims during the course of the state proceedings. If the answer to either of these inquiries is 'no,' the petition is barred either for failure to exhaust state remedies or for a procedural default.

Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992) (quoting Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988)). The principles of comity underlying the exhaustion doctrine require the petitioner to give the state courts a "full and fair opportunity to resolve constitutional claims" before raising those claims in a federal habeas petition. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To comply with this requirement, the petitioner must "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Id.; Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004). For a Wisconsin prisoner, this means that he must assert each of his claims in a petition for review to the Wisconsin Supreme Court. Moore v. Casperson, 345 F.3d 474, 485-86 (7th Cir. 2003).

Although Johnson challenged his conditions of release through two state habeas petitions, through a motion to modify conditions of release filed in the circuit court, and through the prison's administrative process, he did not complete any of the processes through one complete round of Wisconsin's appellate review process. Johnson does not deny this. Thus, for habeas review, this constitutes default. See Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001) ("Failure toexhaust available state court remedies constitutes a procedural default."). Consequently, the only question before me is whether there is good cause to excuse Johnson's failure to seek judicial review of the administrative denial of his requests.

Johnson's procedural default will be excused if he is able to demonstrate cause for the default and actual prejudice as a result of the failure, or alternatively, if he can demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 495-96 (1986). The cause prong of the cause and prejudice inquiry may be satisfied upon a showing that some external impediment, such as governmental interference or the reasonable unavailability of the factual basis for the claim, prevented the petitioner from avoiding procedural default. Id. at 488. Prejudice is established by showing that the violation of the petitioner's federal rights "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010) (internal quotation and citation omitted). The petitioner bears the burden of establishing that his procedural default is excused by one of these two exceptions. See McCleskey v. Zant, 499 U.S. 467, 494-95 (1991). Johnson does not attempt to establish the fundamental miscarriage of justice exception; thus, I will address only the cause and prejudice exception.

2. Cause and Prejudice

To show cause, Johnson asserts that the conditions of supervision limiting his computer access denied him access to the courts. Johnson argues that he was limited to using computers at the University of Wisconsin-Milwaukee ("UWM"), Milwaukee Area Technical College ("MATC"), and Job Center site of Wisconsin. Because he was not a student at either UWM or MATC, he was prohibited from using their computers. Further, the Job Center only allows computer access tosearch for jobs. Thus, Johnson argues that he was prohibited from computer and internet access necessary for researching and preparing his briefs and motions. Johnson further argues that his conditions of release prohibited his use of public libraries, including law libraries.

Johnson is correct that prisoners have a constitutional right of access to the courts for pursuing post-conviction remedies and for challenging the conditions of their confinement. See Bounds v. Smith, 430 U.S. 817, 821-22 (1977). Further, the unavailability of adequate...