Judges: Per Curiam
Filed: Jun. 05, 2017
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued April 6, 2017 Decided June 5, 2017 Before FRANK H. EASTERBROOK, Circuit Judge DANIEL A. MANION, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 16-1076 JESSE H. SWINSON, Appeal from the United States District Petitioner-Appellant, Court for the Eastern District of Wisconsin. v. No. 1:14-cv-00484 TIM HAINES, Superintendent, R
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued April 6, 2017 Decided June 5, 2017 Before FRANK H. EASTERBROOK, Circuit Judge DANIEL A. MANION, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 16-1076 JESSE H. SWINSON, Appeal from the United States District Petitioner-Appellant, Court for the Eastern District of Wisconsin. v. No. 1:14-cv-00484 TIM HAINES, Superintendent, Re..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 6, 2017
Decided June 5, 2017
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16‐1076
JESSE H. SWINSON, Appeal from the United States District
Petitioner‐Appellant, Court for the Eastern District of
Wisconsin.
v.
No. 1:14‐cv‐00484
TIM HAINES, Superintendent,
Respondent‐Appellee. William C. Griesbach,
Chief Judge.
O R D E R
Jesse Swinson was convicted in 1996 in Wisconsin state court for fraud. Then,
after failing to appear for sentencing, he pleaded guilty to an additional charge of bail
jumping. He is currently serving a 29‐year term of imprisonment. Swinson seeks habeas
relief on the ground that prison officials allegedly violated his constitutional rights by
excluding him from a drug rehabilitation program that might have led to an earlier
release. For the reasons set forth below, we agree with the district court that Swinson’s
petition is procedurally barred. Therefore, we affirm the judgment below.
No. 16‐1076 Page 2
I. Background
In 1989, an internal audit at the Kohler Company discovered that Jesse Swinson
had defrauded the company of more than a quarter‐million dollars. Swinson, while
being project manager for a Kohler mill‐building project, had set up a dummy
corporation that billed Kohler for goods never received, services never performed, or
services performed by other contractors. A federal grand jury indicted Swinson on
seventeen counts of mail fraud in violation of 18 U.S.C. § 1341, but at trial the district
court dismissed sixteen of them because the government had failed to prove that checks
had been mailed (an essential element of the offense). The jury convicted him on the
final count, but this court reversed because of insufficiency of evidence and remanded
for a judgment of acquittal. United States v. Swinson, 993 F.2d 1299 (7th Cir. 1993).
Swinson was then prosecuted in Wisconsin state court for the same conduct. In
1995, a jury found him guilty of fifteen counts of theft by fraud in violation of Wis. Stat.
§ 943.20(1)(d). When he failed to appear for sentencing, prosecutors charged him with
bail jumping in violation of Wis. Stat. § 946.49(1)(b). The state court sentenced him to a
total of 29 years’ imprisonment for the offenses. He is still serving that sentence.
As it relates to this case, Swinson first unsuccessfully sought discretionary parole
from the Wisconsin Parole Commission in 2010. He then petitioned to have his security
classification downgraded from medium to minimum, but the Program Review
Committee rejected that request and the Bureau of Offender Classification and
Movement rejected his appeal. Swinson filed an unsuccessful petition for certiorari in
Dane County Circuit Court, and then appealed to the Wisconsin Court of Appeals,
which summarily affirmed and characterized many of his arguments as “incoherent,
undeveloped, or unsupported by relevant factual and legal citations.” The Wisconsin
Supreme Court denied review, precipitating the current habeas petition.
II. Discussion
To preserve claims for federal habeas review, a petitioner must “fairly present
his federal claims to the state courts.” Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004).
He must raise the federal issues “at each and every level in the state court system,” or
his claims will be considered procedurally defaulted. Id. at 1025–26. Such a default bars
habeas relief “unless the petitioner can demonstrate both cause for and prejudice
stemming from that default, or he can establish that the denial of relief will result in a
miscarriage of justice.” Id. at 1026 (citations omitted).
No. 16‐1076 Page 3
Like the district court, we conclude that Swinson has procedurally defaulted on
his federal claims. As the district court repeatedly observed, Swinson’s submissions to
the Wisconsin courts “amount to a stew of decontextualized legal theories, irrelevant
factual details, jumbled reasoning, and abstruse word choices.” Swinson v. Haines, No.
14‐cv‐484, 2015 WL 9581878, at *3 (E.D. Wis. Dec. 31, 2015). We have held that an
argument is not fairly presented if it is not stated “in terms so particular as to call to
mind a specific constitutional right.” Kurzawa v. Jordan, 146 F.3d 435, 441 (7th Cir. 1998)
(quoting Pierson v. O’Leary, 959 F.2d 1385, 1393 (7th Cir. 1992)). Swinson’s ramblings in
the Wisconsin courts do not so qualify. The state courts simply never had a fair
opportunity to rule on the claims Swinson presented to the district court.
Nor can Swinson avail himself of the narrow exceptions to procedural default.
He cannot establish cause that would excuse him from default. He has not identified
any external impediment—nor can we think of one—that prevented him from
intelligibly raising his federal claims in the Wisconsin courts. His status as a pro se
petitioner is not enough. See Salberg v. United States, 969 F.2d 379, 383 (7th Cir. 1992).
And he certainly cannot show that the denial of relief would result in a miscarriage of
justice, a term the Supreme Court has reserved for “a constitutional violation [which]
probably has caused the conviction of one innocent of the crime.” McCleskey v. Zant, 499
U.S. 467, 494 (1991). Therefore, we hold that Swinson’s federal habeas claims are
barred.1
III. Conclusion
For the reasons stated above, we conclude that Swinson did not give the
Wisconsin state courts a fair opportunity to rule on the federal claims he raised below.
His filings in the state courts were simply inadequate, and it would have been nearly
impossible for the courts to determine the nature of his claims. Therefore, Swinson’s
habeas petition is barred. The judgment of the district court is AFFIRMED.
1 Even were we to consider the merits of Swinson’s claims, they would fail for the reasons stated in the
district court’s well‐reasoned opinion. See Swinson, 2015 WL 9581878, at *6–7.