Edward D. Anderson v. Daniel Benik

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2323
E DWARD D. A NDERSON ,
Petitioner-Appellant,
v.
D ANIEL B ENIK ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 C 831—Barbara B. Crabb, Chief Judge.
____________
A RGUED S EPTEMBER 25, 2006—D ECIDED D ECEMBER 20, 2006
____________
Before B AUER , K ANNE , and W OOD , Circuit Judges.
K ANNE , Circuit Judge. Edward Anderson, a state
prisoner in Wisconsin, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging a Febru-
ary 5, 2001 parole revocation. Anderson argues that his
substantive due process rights were violated by the
manner in which Wisconsin corrections officials applied his
pre-sentence credits. If the credits had been applied in the
manner Anderson proposes, his 1992 and 1995 sentences
would both have expired before he was arrested for
violating his parole in 1999. The resulting parole revoca-
tion caused a domino-effect of sorts, pushing back the

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2 No. 05-2323
1 During this period, Anderson served his time in New Jersey,
concurrently with another sentence.
consecutive prison terms, totaling thirty-seven years, that
he is now serving. Anderson has procedurally defaulted his
federal constitutional claim by failing to fairly present it in
state court. We therefore affirm the district court’s dis-
missal of his petition for a writ of habeas corpus.
I. B ACKGROUND
In 1992, Anderson was sentenced to five years’ imprison-
ment for robbery and an additional nine months’ imprison-
ment for battery with the sentences to run concurrently
with each other and concurrently with any others previ-
ously imposed. At that time, the court did not award
Anderson credit for the 294 days he spent in custody prior
to his sentencing as Wisconsin law provides. See W IS .
S TAT . § 973.155. Anderson served his sentence in state
prison until he was paroled in October 1994. 1 In May 1995,
Anderson was arrested in Milwaukee and the parole
granted on his 1992 sentence was subsequently revoked.
In August 1995, Anderson was sentenced to one year’s
imprisonment for fleeing an officer and one year’s impris-
onment for escape, to be served consecutively to any other
sentence.
Anderson was once again paroled in September 1996,
and remained on parole until he was arrested for parole
violations in August 1999. By this time, Anderson had
drawn the state court’s attention to the 294 days of credit
he was never granted. In December 1999, the court
ordered this time credited to Anderson’s 1992 sentence.
His parole on this sentence was revoked on April 13, 2000
and Anderson was reincarcerated. Corrections officials did
not apply Anderson’s 294 days’ credit until June 1, 2000.

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No. 05-2323 3
Anderson was again taken into custody for parole viola-
tions in November 2000, and his parole granted on the
1995 sentence was revoked on February 5, 2001.
Anderson exhausted his administrative remedies on the
February 5, 2001 parole revocation and filed a petition for
a writ of habeas corpus in the Milwaukee County Circuit
Court. The court construed the petition as one for a writ of
certiorari and denied the petition. Anderson appealed the
decision, arguing that his 294 days’ credit was improperly
applied and that if it had been properly applied, both
his 1992 and 1995 sentences would have expired before he
was arrested for parole violations in November 2000.
Anderson relied only on Wisconsin state law, namely W IS .
S TAT . § 973.155. The court of appeals rejected his argu-
ment and determined that he was properly awarded his
pre-sentence credits under Wisconsin law. The Wisconsin
Supreme Court denied Anderson’s petition for review. In
the meantime, Anderson was convicted of new charges for
which he is serving consecutive prison terms totaling
thirty-seven years.
On November 24, 2004, Anderson filed a petition for a
writ of habeas corpus in the District Court for the Western
District of Wisconsin. The petition stated that he was
challenging his March 22, 2000 parole revocation. Ander-
son then conceded that he had failed to exhaust his state
remedies. He therefore asked the district court to construe
the petition as challenging his February 5, 2001 parole
revocation. As Anderson was proceeding pro se and
entitled to the court’s liberal interpretation of his plead-
ings, the district court obliged. Nonetheless, the district
court concluded that Anderson did not state a federal
constitutional claim, and alternatively that any such claim
was procedurally defaulted by failing to raise it before the
state courts. The district court granted the state’s motion
to dismiss the petition for a writ of habeas corpus and

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4 No. 05-2323
subsequently denied Anderson’s request for a certificate of
appealability (COA).
On August 18, 2005 this court issued an order stating
that Anderson did not need a COA under Walker v.
O’Brien, 216 F.3d 626 (7th Cir. 2000), and granting Ander-
son’s motions to proceed in forma pauperis and for ap-
pointment of counsel. We instructed counsel to address in
their briefs whether Anderson has presented a constitu-
tional claim and whether he is still in custody for the
purposes of applying credits from his 1992 conviction.
II. A NALYSIS
This appeal addresses whether Anderson: 1) needed a
COA to appeal the district court’s dismissal; 2) procedur-
ally defaulted his federal constitutional claim; 3) has
stated a federal constitutional claim, rather than one
based solely on state law; and 4) is in custody for the
purposes of applying credits from his 1992 conviction.
A. COA Requirement
In our August 18, 2005 order, we concluded that Ander-
son did not need a COA to appeal the district court’s
dismissal because Anderson was not challenging his
conviction or sentence. The state urges us to reconsider
that decision under Walker or to overturn Walker itself. A
petitioner is required to obtain a COA when the detention
“arises out of process issued by a State court.” 28 U.S.C.
§ 2253(c)(1)(A). In Walker, we explained that “we do not
see how we can construe the words ‘process issued by a
State court’ to mean ‘process not issued by a State court,
but instead the outcome of an internal prison disciplinary
proceeding.’” Walker, 216 F.3d at 637. Because Anderson
is challenging the actions of corrections officials, rather

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No. 05-2323 5
than his conviction or sentencing in state court, we
determined that Anderson did not need a COA. We see no
reason to revisit that decision or to overturn Walker as the
state requests.
B. Procedural Default
Habeas corpus petitioners are required to exhaust state
remedies, absent express waiver by the state, to qualify for
relief in a federal court. 28 U.S.C. § 2254(b). State reme-
dies are exhausted when the petitioner does not have the
“right under the law of the State to raise, by any available
procedure, the question presented.” 28 U.S.C. § 2254(c).
Both parties agree that Anderson has met the exhaustion
requirement for his February 5, 2001 parole revocation.
Exhaustion, however, must be distinguished from proce-
dural default. Perruquet v. Briley, 390 F.3d 505, 514 (7th
Cir. 2004) (noting that, like exhaustion, the procedural
default doctrine “is grounded in principles of comity,
federalism, and judicial efficiency”); Spreitzer v. Schomig,
219 F.3d 639, 644-46 (7th Cir. 2000); see also O’Sullivan v.
Boerckel, 526 U.S. 838, 850-51 (1999) (Stevens, J., dissent-
ing) (giving a detailed explanation of the difference
between exhaustion and procedural default). To avoid
procedural default, “a habeas petitioner must fully and
fairly present his federal claims to the state courts.” Boyko
v. Parke, 259 F.3d 781, 788 (7th Cir. 2001). “Fair present-
ment requires the petitioner to give the state courts a
meaningful opportunity to pass upon the substance of the
claims later presented in federal court.” Id. (quoting
Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999)). In
the interests of federal-state comity, both the operative
facts and controlling law must be put before the state
courts. Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th
Cir. 2001) (citing Wilson v. Briley, 243 F.3d 325, 327 (7th
Cir. 2001)); Boyko, 259 F.3d at 788.

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6 No. 05-2323
Fair presentment, however, does not require a
hypertechnical congruence between the claims made in the
federal and state courts; it merely requires that the factual
and legal substance remain the same. Boyko, 259 F.3d at
788 (citing Verdin v. O’Leary, 972 F.2d 1467, 1474 (7th Cir.
1992)); see also Picard v. Connor, 404 U.S. 270, 277-78
(1971) (“[W]e do not imply that respondent could have
raised the equal protection claim only by citing ‘book and
verse on the federal constitution.’ We simply hold that the
substance of a federal habeas corpus claim must first be
presented to the state courts.”) (citations omitted).
That being said, the state courts must be apprised of the
constitutional nature of the claim. Verdin, 972 F.2d at
1475. If the facts presented do not evoke a familiar
constitutional constraint, there is no reason to believe the
state courts had a fair opportunity to consider the federal
claim. Id. We will consider four factors when determining
whether a petitioner has fairly presented his federal claim
to the state courts: “1) whether the petitioner relied on
federal cases that engage in a constitutional analysis;
2) whether the petitioner relied on state cases which apply
a constitutional analysis to similar facts; 3) whether the
petitioner framed the claim in terms so particular as to
call to mind a specific constitutional right; and 4) whether
the petitioner alleged a pattern of facts that is well within
the mainstream of constitutional litigation.” Ellsworth, 248
F.3d at 639; Briley, 243 F.3d at 327; Verdin, 972 F.2d at
1473-74.
In state court, Anderson relied solely upon Wisconsin
law requiring the application of pre-sentence credits. See
W IS . S TAT . § 973.155. At no time did he assert that the
manner in which his sentence credits were applied gave
rise to a federal due process violation. Nor would the facts
of this case, concerning the manner in which corrections
officials applied pre-sentence credits pursuant to a state

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No. 05-2323 7
statute, evoke a familiar constitutional constraint and
alert the state courts to a federal constitutional issue.
Therefore, we hold, as the district court did, that Ander-
son’s claims are procedurally defaulted.
Despite this procedural default, we may hear Anderson’s
claims if he either demonstrates cause for his default and
prejudice resulting therefrom, or that a miscarriage of
justice will result if we do not consider the merits of his
case. Perruquet, 390 F.3d at 514 (citing Wainwright v.
Sykes, 433 U.S. 72, 87-88 (1977); Murray v. Carrier, 477
U.S. 478, 495-96 (1986)). Establishing cause ordinarily
requires demonstrating an external obstacle preventing
the petitioner from fairly presenting the federal claim in
state court, and actual prejudice, not merely a possibility
of prejudice, is required. Id. at 514-15. The miscarriage-of-
justice-exception applies when the petitioner can demon-
strate that he is actually innocent. Id. at 515 (citing
Schlup v. Delo, 513 U.S. 298, 327-29 (1995)). Anderson has
procedurally defaulted, and because he has not even
alleged that he meets the requirements for these excep-
tions, we will not reach the merits of his claims.
III. C ONCLUSION
For the purposes of this appeal, both parties agree that
Anderson is “in custody” as required by 28 U.S.C. § 2254.
However, we have determined that Anderson’s claims
regarding the application of pre-sentence credits from his
1992 conviction are procedurally defaulted. Therefore, we
need consider neither that issue, nor whether Anderson
has stated a federal constitutional claim. For the fore-
going reasons, the district court’s dismissal of Anderson’s
petition for a writ of habeas corpus is A FFIRMED .

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8 No. 05-2323
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-20-06

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