Isiah M. Ware v. Brian Hayes

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT I
November 9, 2021
To:
Hon. Kevin E. Martens
Circuit Court Judge
Electronic Notice
John Barrett
Clerk of Circuit Court
Milwaukee County Courthouse
Electronic Notice
Karla Z. Keckhaver
Electronic Notice
Columbia Correctional Inst.
Columbia Correctional Center
P.O. Box 900
Portage, WI 53901-0900
Special Litigation & Appeals Unit
Department of Justice
P.O. Box 7857
Madison, WI 53707-7857
Isiah M. Ware 611355
Columbia Correctional Center
P.O. Box 900
Portage, WI 53901-0900
You are hereby notified that the Court has entered the following opinion and order:
2019AP1001 State of Wisconsin ex rel. Isiah M. Ware v. Brian Hayes
(L.C. # 2019CV2776)
Before Donald, P.J., Dugan and Graham, JJ.
Summary disposition orders 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).
Isiah M. Ware, pro se, appeals from an order of the circuit court that dismissed his
petition for a writ of certiorari as untimely. Ware also appeals from an order denying his motion
for reconsideration. Based upon our review of the briefs and record, we conclude at conference

No. 2019AP1001
2
that this case is appropriate for summary disposition. See WIS. STAT. RULE 809.21 (2019-20).1
The orders are summarily affirmed.
On November 30, 2018, Ware’s extended supervision in Milwaukee County Circuit
Court case No. 2012CF3769 was revoked. On January 10, 2019, the Division of Hearings and
Appeals upheld the revocation. On March 14, 2019, Ware submitted a petition for certiorari
review with the circuit court. On April 17, 2019, the circuit court dismissed the petition as
untimely. Ware moved for reconsideration, which the circuit court denied. Ware appeals.
“An action seeking a remedy available by certiorari made on behalf of a prisoner is
barred unless commenced within 45 days after the cause of action accrues.” WIS. STAT.
§ 893.735(2). “Failure to timely file a petition for certiorari … may result in dismissal.” See
State ex rel. Johnson v. Litscher, 2001 WI App 47, ¶5, 241 Wis. 2d 407, 625 N.W.2d 887. Our
review of the dismissal is de novo. See id., ¶4.
The forty-fifth day for seeking certiorari review of the Division’s January 10, 2019
decision would have been on or about February 24, 2019. However, Ware stated he was not
aware of the decision until January 22, 2019, which would make the forty-fifth day March 8,
2019. See WIS. STAT. § 893.735(2); see also State ex rel. Tyler v. Bett, 2002 WI App 234, ¶9,
257 Wis. 2d 606, 652 N.W.2d 800 (“The forty-five-day period begins on the date the prisoner
receives ‘actual notice’ of a final decision or disposition regarding his or her requests for
administrative relief[.]”). As the circuit court noted, however, Ware’s petition, which was not
1 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

No. 2019AP1001
3
mailed from his institution until March 14, 2019, was untimely regardless of which deadline
applies.
Ware nevertheless contends it was inappropriate for the circuit court to dismiss his
petition because, he claims, he was entitled to equitable tolling of the forty-five-day time limit
during two periods: from February 24, 2019 to March 5, 2019, while he was waiting for the
Department of Justice (“DOJ”) to respond to his request for a three-strikes certification,2 and
from March 9, 2019 to March 28, 2019, while he was waiting for his institution to respond to his
request for copies of documents necessary for requesting a waiver of the filing fee. Relying on
State ex rel. Locklear v. Schwarz, 2001 WI App 74, ¶32, 242 Wis. 2d 327, 629 N.W.2d 30,
which held that “the statute of limitations must be tolled while the prisoner waits for the DOJ to
provide him or her with the required documentation,” Ware calculates that his filing deadline
was March 17, 2019.
However, equitable tolling only 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 (emphasis added). The petitioner in Locklear was only waiting for the DOJ
certification—a document over which he had no control. See id., 242 Wis. 2d 327, ¶¶31-32.
Ware, by contrast, needed both the DOJ certification and copies for his fee waiver application.
Unlike the petitioner in Locklear, Ware is not entitled to invoke equitable tolling rules because
by his own admission, he had not requested all of the necessary paperwork over which he had no
2 See WIS. STAT. § 801.02(7)(d).

No. 2019AP1001
4
control until after the March 8, 2019 deadline had passed. Prisoners are not permitted to
“serially toll the forty-five-day period by requesting one document, and after receiving that
document, requesting the next, tolling time further.” Walker, 244 Wis. 2d 177, ¶18.
In addition to failing to request all necessary documents before the deadline, Ware also
failed to timely submit those documents over which he did have control—like his certiorari
petition. While Ware protests that it would have been “unreasonable to send in his sole copy of
his petition to the courts,” this is an argument raised for the first time on appeal. We typically do
not consider such arguments.3 See State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611
N.W.2d 727.
Ware further argues that he was denied access to the courts because of the delay in
having his copies returned to him. This is also an argument raised for the first time on appeal. In
any event, a prisoner’s claims that he or she has been denied access to the courts by his or her
institutions “are appropriately addressed through the Inmate Complaint Review System.” See
Tyler, 257 Wis. 2d 606, ¶19.
Upon the foregoing, therefore,
IT IS ORDERED that the orders are summarily affirmed. See WIS. STAT. RULE 809.21.
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Sheila T. Reiff
Clerk of Court of Appeals
3 We observe, however, that Ware claimed to have submitted three copies of the petition on
March 14, 2019, nearly two weeks before he says his copies were returned to him.