STATE v. SCHWARZ, 2005 WI App 88

281 Wis.2d 272, 695 N.W.2d 904

State of Wisconsin ex rel. John A. Lulloff, Petitioner-Appellant v. David Schwarz, Respondent-Respondent.

Court of Appeals of Wisconsin.
No. 04-1156.
Opinion Filed: March 1, 2005.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from an order of the circuit court for Milwaukee County: CLARE L. FIORENZA, Judge. Affirmed.

Before Wedemeyer, P.J., Fine and Curley, JJ.

¶ 1 PER CURIAM.

John A. Lulloff appeals pro se from an order dismissing his petition for a writ of habeas corpus. We conclude that habeas corpus is an inappropriate method for challenging the revocation of his parole. Therefore, we affirm.

¶ 2 Lulloff was convicted of operating a vehicle while under the influence of an intoxicant as a fifth or subsequent offense. After serving part of his sentence and being released on parole, Lulloff was taken into custody for a new charge of operating a motor vehicle while under the influence of alcohol. He waived his right to a final revocation hearing.[1] His parole was revoked.

¶ 3 To challenge the revocation, he filed a petition for a wr it of habeas corpus. The trial court dismissed his petition.

[H] abeas corpus relief is available only where the petitioner demonstrates: (1) restraint of his or her liberty, (2) which . . . was imposed contrary to constitutional protections or by a body lacking jurisdiction and (3) no other adequate remedy available at law. Habeas corpus is not a substitute for appeal and therefore, a writ will not be issued where the “petitioner has an otherwise adequate remedy that he or she may exercise to obtain the same relief.”

State v. Pozo, 2002 WI App 279, ¶ 8, 258 Wis. 2d 796, 654 N.W.2d 12
(citations omitted); see also WIS. STAT. § 974.06(8) (2001-02).[2]
“Whether [a] writ of habeas corpus is available to the party seeking relief is a question of the law that we review de novo.” See Pozo, 258 Wis. 2d 796, ¶ 6.

¶ 4 The appropriate procedure for challenging a revocation decision is a timely petition for a writ of certiorari. See State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 550, 185 N.W.2d 306 (1971). The mandatory deadline for seeking certiorari relief is forty-five days. See WIS. STAT. §893.735(2). Lulloff is not entitled to the extraordinary remedy of habeas corpus to cure his missing the deadline for pursuing the appropriate remedy, which was certiorari. See § 893.735(2); Cady, 50 Wis. 2d at 550.

By the Court. — Order affirmed.

[1] The record indicates that Lulloff admitted that he was operating a motor vehic le while under the influence of alcohol. In his appellate reply brief, Lulloff contends that he only admitted that he had been drinking the night before his arrest. Lulloff signed a waiver of his right to a final revocation hearing, although he claims that the agent, capitalizing on Lulloff’s poor vision, misled him to believe that he was only waiving his right to a preliminary hearing.

[2] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.