COURT OF APPEALS DECISION DATED AND FILED July 7, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Petitioner-Appellant, v. State of Respondent-Respondent. |
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APPEAL
from an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Titus Pitts, pro se, appeals from an order of the circuit court denying his petition for a writ of habeas corpus. We conclude the court properly denied the petition and affirm the order.
¶2 In 1991, Pitts was convicted of armed robbery as a party to the
crime and given a forty-two-month sentence.
He evidently did not pursue a direct appeal of his conviction. In March 2009, he petitioned the circuit
court for habeas corpus relative to
¶3 The court denied the motion because, it found, Pitts was no
longer in the custody of the State of
¶4 Habeas corpus is an
extraordinary writ, available only under limited circumstances. State ex rel. Haas v. McReynolds,
2002 WI 43, ¶12, 252
¶5 The record indicates, and the circuit court found, that Pitts
was discharged from the sentence in the underlying case on May 2, 1995. It appears, based on the fact that he is housed
at a federal correctional facility, that Pitts is presently in federal custody. Accordingly, habeas corpus is not available because Pitts is not “being held in
violation of a constitutional right or by a tribunal that lacks jurisdiction”
in
¶6 Additionally, Pitts had adequate remedies available. He first had a direct appeal option, which he declined for whatever reason. The circuit court also noted that Pitts had filed a postconviction motion under Wis. Stat. § 974.06 (2007-08), which had been denied, but he offered the circuit court no explanation for failing to pursue an appeal of the denial order prior to seeking habeas corpus. The availability of these prior remedies also bars the writ. See Pozo, 258 Wis. 2d 796, ¶¶9-10 (petition will not be granted if petitioner asserts a claim that could have been raised in a prior appeal and fails to explain why appeal would have been inadequate remedy).[1]
By the Court.—Order affirmed.
This opinion shall not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] We
note that Pitts complains denial of the writ was erroneous “because the State
never demonstrated to the court that his plea and conviction was not
obtained Illegally.” In fact, the burden
to show that restraint was imposed contrary to law rests with the party seeking
the writ—that is, with Pitts, not with the State. See
State
ex rel. Haas v. McReynolds, 2002 WI 43, ¶12, 252