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Inmate’s previous motions didn’t bar habeas petition challenging implementation of sentences

State ex rel. Gregory S. Gorak v. Michael Meisner, Warden, 2017AP39, District 1, 2/27/18 (not recommended for publication); case activity (including briefs)

The circuit court denied Gorak’s petition for a writ of habeas corpus after deciding it was procedurally barred because the issues it raised had already been litigated and decided.  The court of appeals holds that is not the case. 

Gorak filed postconviction motions in 2008 and 2010 challenging the legality of his sentence structure, and in response the circuit court issued amended judgments of conviction to fix the problems identified in the motions. The court amended the JOC again in 2011 after DOC sought clarification of the sentence. Gorak then filed various motions challenging the 2011 amendment, but the circuit court rejected them. It held some of the issues related to DOC’s implementation of the sentences, and said those issues couldn’t be addressed in a sentence modification proceeding but had to be raised in a habeas proceeding. (¶¶5-10).

Gorak appealed, and the court of appeals affirmed; but it also recognized that some of Gorak’s claims might actually be challenging the manner in which DOC was executing his sentences rather than the legality of the sentences, and to the extent that was the case said he should file a habeas petition. State v. Gorak, 2015AP1636, unpublished slip op., ¶13 (WI App Oct. 12, 2016). (¶11).

So Gorak filed a habeas petition. The circuit court dismissed it, holding that all six claims raised in the petition were procedurally barred. (¶12). While two of the claims were about the legality of the sentences, as Gorak himself later conceded (¶17), the court of appeals holds that isn’t true of all of the claims: “The remaining four claims are primarily concerned with the administration of Gorak’s sentences. Gorak’s arguments relate to the commencement of extended supervision of one of his sentences overlapping with the initial confinement period of his next sentence; in short, he challenges whether the sentences are being properly implemented by the DOC.” (¶18). While Gorak may have raised the issues in previous motions, they were not decided—and therefore aren’t procedurally barred—because the courts didn’t have authority to address them in proceedings in the criminal case. Now that Gorak has filed a habeas petition, the circuit court has the authority to address the claims and must do so on remand. (¶21).

The court rejects Gorak’s claim that under § 808.075(3) the circuit court momentarily lacked jurisdiction to address his habeas petition because, at the time the circuit court was doing so, the record in his case was in the court of appeals in Case No. 2015AP1636. That statute prevents action by the circuit court in the criminal case; the habeas is an independent civil case. In any event, the record has long since been remitted back to the circuit court. (¶¶15-16).

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