Jibril A. Wilson v. Brian Hayes

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 10, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP124 Cir. Ct. No. 2023CV8621

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN EX REL. JIBRIL A. WILSON,

PETITIONER-APPELLANT,

V.

BRIAN HAYES ADMINISTRATOR, DIVISION OF HEARINGS AND
APPEALS,

DEFENDANT-RESPONDENT.

APPEAL from orders of the circuit court for Milwaukee County:
BRITTANY C. GRAYSON, Judge. Affirmed.

Before Donald, P.J., Geenen and Colón, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP124

¶1 PER CURIAM. Jibril A. Wilson, pro se, appeals from orders of the
circuit court denying his petition for a writ of certiorari as untimely. See WIS.
STAT. § 893.735(2) (2021-22).1 Upon review, we affirm.

BACKGROUND

¶2 On March 28, 2023, Wilson was on extended supervision, and he
received a notice that revocation proceedings were being brought against him.
After a hearing on May 9, 2023, an administrative law judge (ALJ) of the Division
of Hearings and Appeals (DHA) revoked Wilson’s supervision for eighteen
months. Wilson was granted a second hearing, and a second ALJ also found it
appropriate to revoke Wilson’s supervision. Wilson appealed the revocation
decision to the DHA’s Administrator, Brian Hayes, and Hayes sustained the
decision to revoke Wilson’s supervision. Hayes’s decision was dated August 25,
2023.

¶3 Wilson, as a prisoner at the Milwaukee Secure Detention Facility,
sought certiorari review in the circuit court. The record reflects that the circuit
court received the following documents related to Wilson’s petition over a period
of time beginning on October 9, 2023, and ending on November 14, 2023, when
his petition was considered filed: (1) a petition for writ of certiorari and proposed
writ; (2) an affidavit listing the documents included with his petition and when he
mailed them (affidavit of mailing); (3) documentation of administrative exhaustion
of his claims; (4) an authorization to withhold money from his prisoner trust fund
account and a trust fund account statement; (5) a certification from the Wisconsin

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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Department of Justice (DOJ) that he had no more than three case dismissals under
WIS. STAT. § 801.02(7)(d) (three-strikes certification); and (6) a petition for a fee
waiver and affidavit of indigency.

¶4 As provided in his affidavit of mailing, Wilson stated that he placed
the following documents in the mail on September 25, 2023: (1) the petition for a
writ of certiorari; (2) a proposed writ; (3) a request to DOJ for his three-strikes
certification; (4) administrative exhaustion documentation; and (5) his affidavit of
mailing. Importantly, Wilson did not list in his affidavit of mailing that his
petition for a fee waiver and affidavit of indigency was included with the set of
documents sent to the circuit court on September 25, 2023. Rather, the record
reflects that the circuit court received a petition for a fee waiver and affidavit of
indigency from Wilson, that was signed on October 20, 2023, and stamped as
received and filed by the circuit court on November 6, 2023. The record is overall
silent as to when Wilson placed this petition for a fee waiver and affidavit of
indigency in the mail.

¶5 On November 29, 2023, the circuit court denied Wilson’s petition as
untimely under WIS. STAT. § 893.735(2). The circuit court found that
§ 893.735(2) bars an action for certiorari unless it is filed within forty-five days of
when the cause of action accrues. The circuit court further found that it first
received Wilson’s petition for a writ of certiorari on October 9, 2023, Wilson’s
deadline to file was October 9, 2023, and one of the documents Wilson was
required to file—the petition for a fee waiver and affidavit of indigency—was not
even notarized until October 20, 2023, which was eleven days after the October 9
deadline. Thus, the circuit court found that Wilson’s petition for a writ of
certiorari was untimely.

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¶6 On December 12, 2023, Wilson filed another document that the
circuit court construed as a motion for reconsideration. In this filing, Wilson
asserted that he knew that the petition for a fee waiver and affidavit of indigency
was sent later than his other documents but because his other forms were filed
timely, it did not matter that he sent his petition and affidavit later. He further
contended that he mailed a petition for a fee waiver and affidavit of indigency on
time but submitted a second one—the one ultimately received by the circuit
court—because he discovered that he sent the first one to the wrong address.

¶7 Attached to his filing, Wilson included a copy of his request for his
three-strikes certification from the DOJ dated September 25, 2023, the first page
of Form CV-439 for an “Order on Prisoner’s Petition for Waiver of Prepayment of
Fees/Costs,”2 and the second page of Form CV-438 for a “Petition for Waiver of
Prepayment Fees/Costs – Affidavit of Indigency.” The first page of the Form CV-
439 contains an unrelated case number and no other information is completed on
the form. The second page of the Form CV-438 contains a signature dated
September 25, 2023.

¶8 On December 19, 2023, the circuit court again denied Wilson’s
request as untimely. The circuit court stated that even though Wilson timely filed
some of the required documents, the earliest that Wilson could have filed the
petition for a fee waiver and affidavit of indigency was still past the statutory

2
Form CV-439 “Order on Prisoner’s Petition for Waiver of Prepayment of Fees/Costs”
is a form completed by a circuit court in response to the Form CV-438 “Petition for Waiver of
Prepayment Fees/Costs – Affidavit of Indigency.” With Form CV-439, a circuit court indicates
whether a prisoner’s petition for a fee waiver and affidavit of indigency has been granted or
denied. In this case, the circuit court completed and signed Form CV-439 on November 15,
2023. The Form CV-439 provided by Wilson is unrelated to the Form CV-439 that the circuit
court completed and signed for this case on November 25, 2023.

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deadline of forty-five days, given that the document received by the circuit court
was not even notarized until October 20, 2023.

¶9 Following the circuit court’s second order denying Wilson’s petition,
the record contains additional documents that Wilson filed with the circuit court
on January 11 and 17, 2024, again challenging the circuit court’s denial.3 In these
documents, Wilson again stated that he put all the required documents in the mail
on September 25, 2023. He similarly provided the first page of Form CV-439
with the unrelated case number and the second page of Form CV-438 with the
September 25, 2023 date. He also provided the first page of Form CV-438 with an
unrelated case number.

¶10 In these submissions, Wilson further added that he sent in a second
petition for fee waiver and affidavit of indigency after being informed by the
circuit court that the form was missing. He also stated that he did not receive a
copy of Hayes’s decision until September 18, 2023, and he provided an envelope
dated September 18, 2023, marked with his attorney’s address. Wilson, therefore,
requested that the circuit court reconsider its denial and consider tolling the filing
deadlines.

¶11 The circuit court did not hold a hearing or otherwise respond to
Wilson’s additional documents filed on January 11 and 17, 2024, and Wilson now
appeals.

3
While the circuit court did not address these documents, we nonetheless include them
given that they are contained in the appellate record and both parties have discussed these
documents in their briefing.

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DISCUSSION

¶12 On appeal, Wilson argues that the circuit court erroneously
dismissed his petition as untimely. We review de novo the circuit court’s decision
to dismiss Wilson’s petition as untimely. See State ex rel. Johnson v. Litscher,
2001 WI App 47, ¶4, 241 Wis. 2d 407, 625 N.W.2d 887.

¶13 The time for an action by a prisoner challenging a governmental
decision is governed by WIS. STAT. § 893.735(2), which states that “[a]n action
seeking a remedy available by certiorari made on behalf of a prisoner is barred
unless commenced within [forty-five] days after the cause of action accrues.” See
Johnson, 241 Wis. 2d 407, ¶5. “[A]n action seeking a remedy available by
certiorari is commenced at the time that the prisoner files a petition seeking a writ
of certiorari with a court.” Sec. 893.735(3). The forty-five day period to
commence an action begins “on the date of the decision or disposition[.]”
Sec. 893.735(2). “Failure to timely file a petition for certiorari under WIS. STAT.
§ 893.735 may result in dismissal.” Johnson, 241 Wis. 2d 407, ¶5.

¶14 In this case, the circuit court dismissed Wilson’s petition as untimely
because it found that Wilson failed to timely file the petition for a fee waiver and
affidavit of indigency within forty-five days after Hayes’s decision. The record
indicates that the only completed petition for a fee waiver and affidavit of
indigency that the circuit court received was dated October 20, 2023, and that this
petition for a fee waiver and affidavit of indigency was dated and received after
the forty-five day deadline of October 9, 2023. “In Wisconsin, however, civil
actions are not commenced until the applicable filing fee is paid, unless payment is
waived by the court for cause shown.” State ex rel. Shimkus v. Sondalle, 2000
WI App 238, ¶9, 239 Wis. 2d 327, 620 N.W.2d 409 (citation omitted). Thus, we

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agree with the circuit court that Wilson’s petition for a writ of certiorari was
untimely because it was missing a complete and timely filed petition for a fee
waiver and affidavit of indigency. However, in light of Wilson’s remaining
allegations, we also turn to the question of whether equitable tolling applies.

¶15 “[W]hen a prison inmate places a certiorari petition in the
institution’s mailbox for forwarding to the circuit court, the forty-five day time
limit in WIS. STAT. § 893.735(2) is tolled.” State ex rel. Locklear v. Schwarz,
2001 WI App 74, ¶25, 242 Wis. 2d 327, 629 N.W.2d 30. “[T]he tolling begins
when the documents over which prisoners have control have been mailed, and all
of the documents over which prisoners have no control have been requested.”
State ex rel. Walker v. McCaughtry, 2001 WI App 110, ¶18, 244 Wis. 2d 177,
629 N.W.2d 17; see also State ex rel. Tyler v. Bett, 2002 WI App 234, ¶15, 257
Wis. 2d 606, 652 N.W.2d 800. The petition for a fee waiver and affidavit of
indigency is considered a document over which a prisoner has control, and
consequently, it is required to be placed in the mail to trigger any tolling. See
Locklear, 242 Wis. 2d 327, ¶22; Walker, 244 Wis. 2d 177, ¶12; see also Tyler,
257 Wis. 2d 606, ¶15 (“The tolling rule is thus limited in scope, and a prisoner
must submit proper documents and comply with statutory fee or fee-waiver
requirements in order to obtain the benefit of the rule.”).

¶16 In his later submissions to the circuit court, as well as on appeal,
Wilson claims to be entitled to equitable tolling beginning on September 25, 2023.
We disagree, and we conclude that Wilson fails to establish that he is entitled to
any equitable tolling beginning on September 25, 2023, because he has not
established that he placed a complete set of documents containing his petition for a
fee waiver and affidavit of indigency in the mail on September 25, 2023. See
Tyler, 257 Wis. 2d 606, ¶¶15-16.

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¶17 Wilson claims that he prepared a petition for a fee waiver and
affidavit of indigency dated September 25, 2023, and that he included this
document with his other documents dated September 25, 2023. Yet, somehow
only his petition for a fee waiver and affidavit of indigency was incorrectly
addressed and did not arrive at the circuit court. Wilson fails to explain how his
petition for a fee waiver and affidavit of indigency went missing if it was included
with several other documents that did timely arrive at the circuit court on October
9, 2023. He further fails to explain why, if he originally included a petition for a
fee waiver and affidavit of indigency, he did not list this document in his affidavit
of mailing, as he did the other documents he sent to the circuit court on that date.
Consequently, we consider Wilson’s claim that he included a petition for a fee
waiver and affidavit of indigency with his other documents dated September 25,
2023, but somehow only the petition for a fee waiver and affidavit of indigency
was incorrectly addressed to be inconsistent with the record.

¶18 Wilson’s claims are also inconsistent with each other. In addition to
claiming that he prepared a petition for a fee waiver and affidavit of indigency on
September 25, 2023, that was lost in the mail, Wilson also claims that the court
should overlook any untimeliness in the petition for a fee waiver and affidavit of
indigency because he timely submitted the remainder of his documentation.
Wilson cannot claim to have timely submitted a petition for a fee waiver and
affidavit of indigency that was lost in the mail and then also request to have an
admittedly untimely petition for a fee waiver and affidavit of indigency
overlooked as a sort of harmless error given that he submitted the rest of his
documents timely.

¶19 Additionally, the documentation that Wilson submits as proof of a
petition for fee waiver and affidavit of indigency dated September 25, 2023, is

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comprised of an incomplete document that is not connected in any way to this case
and an entirely different form for an entirely different case.

¶20 In short, the record taken as a whole does not reflect that Wilson did
in fact submit a petition for a fee waiver and affidavit of indigency for this case on
September 25, 2023. Therefore, Wilson is not entitled to any equitable tolling
beginning with his placement of his petition for a writ of certiorari in the mail on
September 25, 2023.

¶21 Nevertheless, Wilson also alleged in his last submissions to the
circuit court and on appeal that he was entitled to equitable tolling because he did
not receive a copy of Hayes’s decision from his attorney until September 18, 2023.
In support of this assertion, Wilson submitted an envelope from his attorney dated
September 18, 2023.

¶22 Initially, we note that Wilson did not raise his receipt of Hayes’s
decision as an issue until January 11 and 17, 2024, after the circuit court’s second
denial of Wilson’s petition as untimely. Rather, Wilson’s first course of action—
which he similarly repeated in his last submissions to the circuit court in January
2024 and again on appeal—was to submit a document for a different case dated
September 25, 2023, and allege that the first petition for a fee waiver and affidavit
of indigency was timely placed in the mail but ultimately lost. Wilson also
provided the alternate explanation that the untimeliness of his petition for a fee
waiver and affidavit of indigency should be overlooked because he timely
submitted the other documents.

¶23 However, for the sake of completeness we assume Wilson did not
receive a copy of Hayes’s decision until September 18, 2023, and that Wilson’s
deadline may have been extended to November 2, 2023, such that the second

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alleged petition for a fee waiver and affidavit of indigency dated October 20,
2023, could have been considered timely if it was placed in the prison mailbox
prior to the deadline. See WIS. STAT. § 893.735(2) (“[T]he court may extend the
period by as many days as the prisoner proves have elapsed between the decision
or disposition and the prisoner’s actual notice of the decision or disposition.”). As
the State correctly points out, however, this petition for a fee waiver and affidavit
of indigency was not received by the circuit court until November 6, 2023. The
circuit court’s receipt of this document is still after the potentially extended
deadline of November 2, 2023, and Wilson fails to provide any proof that he put
this document in the mail prior to the deadline. Thus, Wilson’s petition was
likewise untimely under any assumed extension of the deadline to November 2,
2023.

¶24 Accordingly, we conclude that Wilson’s petition for a writ of
certiorari was untimely, and we affirm the circuit court’s denial of Wilson’s
petition as such.4

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

4
While we are overall satisfied that the record in this case demonstrates that Wilson is
not entitled to equitable tolling and cannot demonstrate that he timely filed his petition for a writ
of certiorari, we note that a fact-finding hearing in this case would have provided additional
clarity in the record on the facts related to Wilson’s allegations that he is entitled to equitable
tolling, either because he did submit a petition for a fee waiver and affidavit of indigency on
September 25, 2023, or because he did not receive a copy of Hayes’s decision until September
18, 2023. See State ex rel. Walker v. McCaughtry, 2001 WI App 110, ¶¶23-26, 244 Wis. 2d 177,
629 N.W.2d 17.

10