How Blacks Became A Consumer Nation, What We Must Do to Change and Why

How Blacks Became A Consumer Nation, What We Must Do to Change and Why

The Office of the Chief Judge First Judicial District

On yesterday, August 21, I received confirmation from State Court dated August 16, 2013, that case number 2013CV006447 has been dismissed and my summons returned because the petition for writ of certiorari is DENIED.

Now, I have to decide whether to appeal the court's decision on the DISCHARGE CERTIFICATE issued by the Secretary of Wisconsin Prisons in accordance with Wis. Statutes, Chapter 304 and 973,dated 09/04/2012, ordered effective July 27, 2012 for Court Case #05CF63, sentenced November 9, 2005.  It is a legal document without any legal restraint of liberty, matter of fact, it restores the persons civil rights because he is discharged from his judgment of conviction, that's what the document states.

February 4, 2010, case no 05CF000063, the court stated " The defendant also asks the court to order the Department of Corrections to adhere to the mandatory release date on his pre-truth-in-sentencing sentences because he only has to serve two-thirds of those sentences...(in prison or confinement). That is not an issue for this court (sentencing court).  The Department of Correction has sole jurisdiction with regard to the calculation of release dates and the interplay between old law, new law, and truth-in-sentencing sentences.  The court has no authority to interfere in the computation of the defendants's sentence structure, and it cannot order the Department how to calculate his release  date."

Wis. Adm. Code DOC 302.22; Ambiguity in sentence; if a registrar is uncertain as to the terms of a sentence imposed on a resident, the register shall notify the court of the uncertainty in writing.  The register shall inform the resident of the legal services available at the institution to assist the resident.

The record shows a letter was dated December 28, 2005, to Judge Hansher and a letter was sent February 7, 2006.  There is no record of the court's response.

The Secretary of Wisconsin Prisons said the judgment in case 05CF63 is satisfied. The Wisconsin Parole agents and the Administrator for the division of parole said that's not true.  The court has sided with the parole division stating there is no cause of action dismissing the writ.  I must really give this some serious thought before proceeding.

Federal Court Subject Matter Jurisdiction

Why does this court have subject matter jurisdiction?

Wisconsin Income Tax Form 1 (1) is the federal adjusted gross income taken from a taxpayer's federal required form 1040 U.S. Individual Income Tax Return.  The state taxing agency increased this amount for 1999, 2000 and 2001 without notice and hearing violating the taxpayer's right to be heard before conviction of tax evasion.

1.  The enabling statute for federal question jurisdiction, 28 U.S.C. 1331, provides that the district courts have subject-matter jurisdiction in all civil action arising under the Constitution, laws of treaties of the United States Constitution.  Also see Article III Section 2 of the United States Constitution.
2.  Article III Section 2, provides that the judicial power shall extend to all cases, in law and equity, or arising under this constitution, the laws of the United States and treaties made, or which shall be made, under their authority...to controversies between a state and citizens of another state.
3.  Federal law includes an Act of Congress or a regulation issued under Act of Congress.
4.  The Taxpayer Bill of Rights (TBOR I), II, and III are Acts of Congress.
5.  Procedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to generality of cases.  Procedural due process imposes constraints on government decisions which deprive individuals of "liberty or property" interest within the meaning of the due process clause of the Fifth and Fourteenth Amendments of the United States Constitution.  The required elements of due process are those that "minimize substantively unfair or mistaken deprivations" by enabling persons to contest basis upon a state that proposes to deprive them of protected interest.  In this case income or money alleged to be unreported for tax purposes with the intent to evade.

Federal Court Subject Matter Jurisdiction

August 13, 2013, the Magistrate Judge determined that the State of Wisconsin can adjust a taxpayer's reported income on Wisconsin Income Tax Form 1 (1); the federal adjusted gross income taken from Federal Income Tax Form 1040 without giving the taxpayer notice or an opportunity to be heard on the adjustment made by the state taxing agency.

The reasoning is that the Taxpayer Bill of Rights is federal law and the Fifth and Fourteenth Amendments to the U.S. Constitutional do not apply in state tax cases, therefore the federal court does not have subject matter jurisdiction.

Arithmetic Vs. Law

In Wisconsin Civil Case 13CV006447, the court concluded "as a matter of law the petitioner has not stated a valid claim for relief".

What is Failure to State a Claim?

The law states that failure to state a claim is "the failure to present sufficient facts, which if taken as true, would indicate that any violation of law accrued or that the claimant is entitle to a legal remedy".

"The court finds this to be an accurate computation of the petitioner's discharge date (provided revocation does not occur)".

The arithmetic used to compute the projected release date is not the issue, rather, the issue is whether the facts presented in the petition, if true, violated Wisconsin Statutes Chapter 304 & 973 and entitles the petitioner to a legal remedy...a discharge certificate.

In a civil case, preponderance of the evidence, the greater weight of the evidence required for the trier of fact to decide in favor of one side or the other.  This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence (number of persons applying projected arithmetic).  Thus, a clearly stated discharge certificate signed by the Secretary of Wisconsin Prisons with definite dates and statutes may out weigh opinions or speculations about what the certificate intended.

Court's July 24, 2013 Decision and Order

Let's have a look at the courts reasoning:

"Because there was no hearing on the complaint, only an exchange of correspondence, and because the court has the entire record, there is no need to issue a writ to obtain the record".

This was more than an "exchange of correspondence". This was an action pursuant to DOC 328.11 (6) Supervisor's Investigation and Decision, more than a mere letter writing exercise. It is a required procedure of "Administrative Exhaustion" when a client such as citizen Lee challenges an administrative decision effecting his civil rights, his liberty, his right to be free.

The court concluded that the "discharge certificate is ambiguous because it does not set forth the specific counts in 05CF63 for which sentences have been completed".

The discharge certificate does set forth the Wisconsin Statutes that citizen Lee was found guilty of violating.  The discharge certificate set forth the following:  "you were sentenced to Wisconsin State Prison on November 9, 2005,...court case #05CF63, after being found guilty of violating Wisconsin Statute (s) 943.20 (1) (B), 943.38 (2).  The department having determined that you satisfied said judgment, it is ordered that effective July 27, 2012, you are discharged from said judgment only".  Signed by the Secretary of Wisconsin Prisons.

The court concluded that "the judgments of convicton for case 05CF63 clearly reflect that the sentences for courts 4 through 12 are still running".  "Thirteen year sentences were imposed on those counts, bifurcated into seven years of initial confinement and six years of extended supervision".  "The discharge certificate applies only to counts 1 and 3, and arguably counts 13, 14, and 15, although those sentences expired in November of 2008 for which he should have received a discharge certificate previously".

Now, let's look at the judgments of conviction for case 05CF63.  This case structure consist of indeterminate sentences and determinate sentences.  When there are indeterminate sentences the parole board determines how much time will be confinement and how much will be parole.  When there are determinate sentences the court determines how much time is confinement and how much is extended supervision.  the judgment of conviction states that; "count 1 indeterminate sentence...10/27/2010 total of 102 days credit on all concurrent counts, count one through fifteen; case no. 2005CF000063; count 2 determinate sentence concurrent to count 1 indeterminate sentence.  As to counts 4,5,6,7,8,9,10,11 and 12; each count concurrent to each other and counts 1,2, and 3.

The court further states "It would have been better if the department had designated the specific counts which the discharge certificate applied.  Suffice it to say that petitioner's civil rights will not be reinstated until all of sentences in case 05CF63 have expired and a discharge certificate issues for the remaining counts (4-12).  Because the petitioner has not set forth a valid claim for relief, his petition is denied".