Burnette v. Jess

• Court: District Court, E.D. Wisconsin
• Decided: September 10, 2019
• Docket: 2:19-cv-01211
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

ROBERT E. BURNETTE,

Petitioner, Case No. 19-CV-1211-JPS-JPS v.

CATHY JESS, ORDER

Respondent.

Petitioner was convicted of various child sex crimes in Wisconsin state court in 2012 and sentenced to a term of imprisonment in 2013. (Docket #1). He filed the instant petition pursuant to 28 U.S.C. § 2241, alleging that his conviction and sentence are contrary to federal law. Id. There are two problems with Petitioner’s case at the outset. First, Section 2241 is not the proper statute under which to bring the instant suit. 28 U.S.C. § 2254 is the exclusive method to challenge the constitutionality of a final judgment of conviction. Section 2241 may only be used prior to a conviction, or for something other than a challenge to a conviction. The Court will provide Petitioner a copy of a form Section 2254 petition. He must complete that form and submit it no later than October 1, 2019. Second, Petitioner has not paid the $5.00 filing fee he owes in this matter. On August 21, 2019, the Clerk of the Court sent Petitioner a letter demanding that he either pay the fee or file a motion to proceed in forma pauperis. (Docket #3). If he chose to file a motion, the Clerk further informed Petitioner that he needed to provide a certified copy of his institutional trust account statement for the previous six months. Id. So far, Petitioner has not done any of the things requested by the Clerk. Instead, on September 6, 2019, he filed a motion seeking to pay the filing fee out of his release account. (Docket #7). The Court will deny that motion at this time. “A release account is a restricted account maintained by the Wisconsin Department of Corrections to be used upon the prisoner’s release from custody upon completion of his sentence.” Wilson v. Anderson, Case No. 14-C-798, 2014 WL 3671878 at *3 (E.D. Wis. July 23, 2014) (citing Wis. Admin. Code § DOC 309.466). Given the reason for the release account, federal courts generally do not permit prisoners to use funds in their release account to satisfy the filing fee requirements. Smith v. Huibregtse, 151 F. Supp. 2d 1040, 1042 (E.D. Wis. 2001). Thus, Petitioner must do as the Clerk has already instructed: either pay the fee or file a motion to proceed in forma pauperis along with his trust account statement. The Court will require Petitioner to take one of these two courses no later than October 1, 2019. Accordingly, IT IS ORDERED that Petitioner’s motion to pay the filing fee from his release account (Docket #7) be and the same is hereby DENIED; and IT IS FURTHER ORDERED that Petitioner shall file a corrected petition, and either pay the filing fee or file a motion for leave to proceed in forma pauperis with an accompanying trust account statement, on or before October 1, 2019. If he fails to do so, this action will be dismissed without prejudice. Dated at Milwaukee, Wisconsin, this 10th day of September, 2019. vo Wek sas) PUY fea , J. R. Stach ueller U.SNDistrict Judge Page 2 of 2