Anthony Roberts v. Larry Jenkins , 329 F. App'x 670 ( 2009 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 22, 2009*
Decided July 22, 2009
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 09-1260
ANTHONY L. ROBERTS, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 08-C-808
LARRY L. JENKINS, William C. Griesbach,
Defendant-Appellee. Judge.
ORDER
Anthony Roberts, a Wisconsin prisoner, filed a petition for habeas corpus under 28
U.S.C. § 2254 challenging his loss of good-time credits and the extension of his final
discharge date following the revocation of his parole. The district court dismissed his
petition for procedural default and we affirm.
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See
Fed. R. App. P. 34(a)(2).
No. 09-1260 Page 2
Wisconsin released Roberts on parole after he had served six years of a twenty-five-
year sentence for delivering crack and violating a tax-stamp law. Eight years after his
release, in October 2007, an administrative judge revoked Roberts’s parole for, among other
violations, beating his girlfriend. The judge ordered Roberts reincarcerated for 68 months
and held that Roberts had forfeited his good-time credits, resulting in an extension of his
maximum discharge date from 2016 to 2026. The administrative review board affirmed the
judge’s decision and advised Roberts that any further challenge must be brought within
forty-five days via a petition for collateral relief in Wisconsin state court. Ninety-five days
later Roberts filed a petition for collateral relief in state court. He did not, however, serve
the warden with a copy of his petition, and so the state court dismissed it. Roberts skipped
over the Wisconsin Court of Appeals, and instead of appealing the dismissal, filed a second
collateral petition with the Wisconsin Supreme Court. That petition also was dismissed.
In September 2008 Roberts filed his § 2254 petition arguing that the extension of his
maximum discharge date violated his constitutional rights. The district court held that by
failing to properly raise his argument in the Wisconsin circuit court and entirely skipping
appellate review, Roberts had failed to exhaust his state remedies. The court therefore
dismissed the petition for procedural default.
We review the dismissal de novo. See Bintz v. Bertrand, 403 F.3d 859, 864 (7th Cir.
2005). A prisoner wishing to challenge the loss of good-time credits must exhaust available
state-court remedies before turning to federal court. 28 U.S.C. § 2254(b)(1); Lieberman v.
Thomas, 505 F.3d 665, 667 (7th Cir. 2007). In Wisconsin that remedy is a petition for a
common-law writ of certorari. McAtee v. Cowan, 250 F.3d 506, 508 (7th Cir. 2001). In order
to satisfy the exhaustion requirement, a prisoner must “fairly present” his claim in each
appropriate state court. Baldwin v. Reese, 541 U.S. 27, 29 (2004); see also O'Sullivan v. Boerckel,
526 U.S. 838, 845 (1999); McAtee, 250 F.3d at 509. Roberts did not present his claim to the
Wisconsin Court of Appeals and thus defaulted it. And although he tried unsuccessfully to
circumvent a full round of state-court review by seeking collateral relief directly from the
Wisconsin Supreme Court, this failed effort did not fulfill the exhaustion requirement. See
Crump v. Lane, 807 F.2d 1394, 1395 (7th Cir. 1986); see also Crockett v. Hulick, 542 F.3d 1183,
1193 (7th Cir. 2008). Roberts has never argued that his default should be excused, see, e.g.,
Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir. 2008), and so any such argument is waived, see
Aliwoli v. Gilmore, 127 F.3d 632, 634-35 (7th Cir. 1997). The district court correctly
concluded that Roberts’s arguments were procedurally defaulted.
AFFIRMED.