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(State) Habeas – Generally, Statutory vs. Common Law – Challenge to Ch. 980 Commitment

State ex rel. Frederick Lee Pharm v. Bartow, 2005 WI App 215
For Pharm: Roisin H. Bell (Pro Bono)

Issue/Holding( Dicta): ¶12, n. 6:

The State also draws a distinction between statutory habeas corpus and common law habeas corpus, contending that the circuit court properly ruled that Pharm was not entitled to statutory habeas corpus relief because he was committed under a valid judgment of commitment. However, the State says that the circuit court failed to address the common law aspects of Pharm’s habeas corpus action. This form of habeas corpus relief lies for violations of the United States Constitution, State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 451, 593 N.W.2d 48 (1999), and is an equitable doctrine allowing a court to tailor a remedy applicable to the particular facts. State ex rel. Richards v. Leik, 175 Wis.  2d 446, 452, 499 N.W.2d 276 (Ct. App. 1993).

We question the State’s contention that Pharm would not have been entitled to statutory habeas corpus relief if the Wis. Stat. ch. 980 commitment proceeding was barred by Pharm’s waiver of extradition and the IAD. Under that scenario, the Milwaukee County Circuit Court arguably would not have had the requisite competency to proceed in a ch. 980 commitment proceeding. Thus, the commitment order would not be valid. However, we need not address this question since we hold that Pharm’s rights under the IAD were fully honored and the State was not barred from seeking Pharm’s commitment pursuant to ch. 980. Thus, Pharm is not entitled to statutory or common law habeas corpus relief.

The procedural background is somewhat complex, but reduces to this: Pharm, while serving a sentence in Nevada, became subject to Wisconsin detainer on charges here. He waived extradition under the Detainer Act, got convicted and sentenced here and was returned to Nevada to continue serving that sentence. Wisconsin lodged a new detainer for our sentence, which caused his return here for that sentence when he reached parole release in Nevada. Upon parole in Wisconsin, rather than return him to Nevada for parole there (it was a life sentence), We committed him as an SVP under ch. 980. He took a direct appeal of that commitment, and lost, State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163. He now seeks, under habeas procedure, to collaterally attack the commitment on a claimed violation of the detainer act. The court allows the attack to proceed, but oddly doesn’t say why habeas is the correct vehicle, beyond a mystifying reference to statutory and common-law distinctions in the footnote quoted above. First, Fuentes simply doesn’t draw the claimed distinction; whatever the distinctions between statutory and common law procedure might be, they aren’t discernible there. Second, it is long-settled that common law habeas supportsjurisdictional attacks. State ex rel. Morgan v. Fischer, 238 Wis. 88, 91, 298 N.W. 353 (1941) (“Nothing will be investigated on habeas corpus except jurisdictional defects amounting to want of any legal authority for the detention or imprisonment. Petition of Crandall for a Habeas Corpus (1874), 34 Wis. 177; Larson v. State ex rel. Bennett(1936), 221 Wis. 188, 266 N.W. 170.”). Of course, by “jurisdictional defects” is meant defects sufficiently severe to render the judgment void, but the point is that common law habeas supports non-constitutional error and thus the court’s distinction is too facile. Third, ch. 980 is, as we’ve been told over and over, a civil remedy – which means that § 806.07 (relief from judgment) is available for collateral attack. Indeed, Pharm launched a prior attack under that provision raising essentially the same argument he renews here; the court acknowledges that its prior rejection probably creates law of the case bar to this appeal, but would nonetheless be overlooked, ¶9 n. 5. It remains to be seen, then, whether and to what extent habeas supports collateral attack of a ch. 980 commitment. It should be kept in mind that habeas isn’t available where an adequate remedy at law exists. If § 806.07 is not an adequate remedy at law, the court doesn’t say why – which means that that provision ought to be looked to first, in preference to habeas. In other words, this case should not be read broadly to allow habeas as supporting collateral attack; could be that the court (albeit without saying so) followed the rule that pro se pleadings should be construed liberally or simply that the court wanted to re.

ach the merits in a precedential manner and terminate repetitive litigation on the issue. It ought to kept in mind, too, that 28 USC § 2254 supports federal habeas review of an SVP commitment


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