By Margo Kirchner
Robert W. Huber Jr. spent 18 years too many in prison or on probation because of bureaucratic blunders and refusal to listen to his protests.
Now a federal appeals court has cleared the way for his civil rights lawsuit to proceed.
Huber is seeking damages for violations of his constitutional rights. U.S. District Judge J.P. Stadtmueller granted summary judgment to the defendants, holding that Wisconsin’s six-year statute of limitations barred most of Huber’s claims and that no reasonable jury could find in Huber’s favor on any remaining ones.
Huber appealed. On Monday, the Seventh Circuit Court of Appeals reversed, reinstated Huber’s claims, and remanded the case for further proceedings. The appellate court denied Huber’s request to reassign the case to a different district judge, however.
Huber pleaded guilty in 1988 in Milwaukee County Circuit Court to fraudulently using another man’s credit card for charges totaling $800. His sentence, originally a four-year probation term, turned into a 25-year odyssey of probation and prison.
First, an additional three years of probation were tacked on because Huber failed to pay restitution.
“With that extension, his sentence should have ended on November 3, 1995,” U.S. Circuit Judge Diane P. Wood wrote for the three-judge panel of the Seventh District Court of Appeals. “But it did not.”
Wood was joined in her opinion by U.S. Circuit Judges Joel M. Flaum and Frank H. Easterbrook.
First, in May 1993 and while still on paper, Huber stopped showing up for appointments with his probation agent. He was arrested in November 1994, but the state did not move to revoke his probation or to extend it. His agent even wrote that his discharge date was “11-3-95.” Later, in her last entry before Huber’s discharge date, the agent wrote, “no changes – all ok.”
“November 3 came and went without any action; no release, no modification of Huber’s probation, no formal extension,” Wood wrote. “Two weeks later, without any reference to her repeated notes acknowledging the November 3, 1995 release date, (Probation Agent Gloria) Anderson issued an apprehension request for Huber.”
Huber argued for years that his probation term expired on the November 3, 1995 date. But, he alleges, various probation officers and Wisconsin Department of Corrections (DOC) officials did little or nothing to investigate whether his probation was illegally extended. Not until October 2013 did officials determine that Huber was right.
Huber was arrested in January 1996, not terribly long after Anderson issued her apprehension request.
Anderson and her supervisor, Elizabeth Hartman, then told him that his probation had been suspended from May 1993 to November 1994 and he still had time to serve. They had him sign a form requesting reinstatement of his probation. Huber alleges that the form was blank at the time and changed later to make it appear that he admitted to absconding from probation.
Huber’s probation was extended to July 1998.
Another absconding led to more extensions, until in October 2000 Huber’s probation was revoked, resulting in a 10-year prison sentence for an $800 credit card fraud conviction that originally netted him four years of probation.
While imprisoned, Huber unsuccessfully sought to overturn his sentence through administrative proceedings and petitions in state and federal court.
In June 2011, shortly before release from prison, Huber conferred by phone with his new probation agent, Niomi Bock, her supervisor, Kathy Walter, and his social worker. He argued that the state could not punish him further, and his social worker offered to send documents to Bock and Walter supporting Huber’s argument.
Bock and Walter rejected Huber’s argument, denied his requests to meet with a DOC attorney, and believed that they were not responsible for determining whether Huber’s sentence was valid. Walter called the DOC’s records unit to confirm that Huber was properly on probation, but she did not ask the records agent to review the documents in Huber’s record.
After release from prison, Huber wanted to conduct research using public library computers, but his release restrictions required preapproval of computer usage. Bock denied Huber’s request but offered to have a probation agent conduct two hours of research for him. According to Huber, the agent left for various intervals and delayed whenever he asked her to look something up. He left with only instructions for filing a pro se court petition.
Additional alleged violations of probation requirements triggered additional revocation proceedings. Huber argued at his revocation hearing in March 2012 that the DOC had no jurisdiction over him, but the administrative law judge (ALJ) ordered revocation and Huber’s administrative appeal went nowhere.
Huber next went to state court to try to vacate his sentence, arguing that the DOC lacked jurisdiction over him. The circuit court remanded the case to the DOC for more development of the factual record.
A new probation supervisor, Sandra Hansen, and the Department of Community Corrections Records Director, Sheri Hicks, then looked into Huber’s records and by October 2013 determined that he was correct. Hansen notified the ALJ who had ordered revocation and asked that the proceedings be vacated. In January 2014 the circuit court vacated Huber’s sentence, agreeing that the state lost jurisdiction over Huber in November 1995.
Huber filed his federal court case against several DOC defendants in January 2016, claiming, among other things, violations of the First and Eighth Amendments, failure to intervene, denial of access to the courts, and denial of the right to vote.
Stadtmueller dismissed most of Huber’s claims as untimely. At the time Huber filed his case such claims had to be brought within six years.
On appeal, the state defendants conceded that Stadtmueller erred regarding the timeliness of some claims but continued to argue that Huber could have brought his Eighth Amendment claims any time between November 1995 and February 2001.
The Seventh Circuit held that under clear U.S. Supreme Court precedent Huber could not have filed his case before the state court vacated his sentence in January 2014. Before then, Huber could have filed only a habeas corpus action – a type of case used to obtain release from custody rather than damages.
Under the 1994 Supreme Court’s decision in Heck v. Humphrey, a federal case seeking damages for probation or imprisonment does not accrue until that sentence is invalidated. Had Huber filed his federal cases before January 2014 it would have been dismissed as premature, said Wood.
Wood recognized that Huber’s federal case involves events from more than 20 years ago. “But that is a natural consequence of the Heck rule. . . . If wrongful custody lasts for a long time, then Heck will require both parties to litigate over dated civil claims,” said the court. “That is simply the price of the Heck doctrine, which normally ensures that civil litigation does not undermine the basis of criminal convictions and sentences.”
Stadtmueller dismissed an Eighth Amendment claim against Bock and Walter on the merits. The Seventh Circuit reversed that decision as well, saying that a reasonable jury could conclude that Huber’s extended probation “was the product of deliberate indifference,” meeting the standard necessary to defeat summary judgment.
Deliberate indifference requires more than negligence or gross negligence and generally equates with criminal recklessness, said the court. The court noted how Bock ignored Huber’s requests for closer review of his file and “averted her eyes from the substantiating information.” And although Walter called the central records unit, she failed to call their attention to the documents Huber referenced or ask them to inspect the documents in the file, the court said.
As for Huber’s access-to-court claim, which included denial of access to research materials, the Seventh Circuit found that Stadtmueller had improperly conflated that claim with one of retaliation. “On remand, the district court must sort out these two theories,” said Wood.
Wood suggested that Stadtmueller also consider whether Huber has a viable claim that the defendants withheld exculpatory materials from administrative decision makers.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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