Xiong, Tou v. The State Of Wisconsin, 3:20-cv-00448

Petitioner Tou Yong Yee Xiong is a federal inmate (convicted 2017, serving 84 months) who filed a pro se habeas petition styled as a “Habeas Corpus Jurisdictional Challenge” challenging earlier Wisconsin state convictions (2016 felony bail jumping, theft, battery).
Court construed the filing as a § 2254 petition and performed preliminary review under Rule 4 of the Rules Governing Section 2254 Cases.
Key procedural/custody issue: Xiong is in federal custody; it is unclear from record whether he remained “in custody” under the state convictions at the time he filed § 2254 (his probation term arguably expired in September 2019).
Substantively, Xiong alleged his state convictions were invalid as “commercial crimes” and claimed ineffective assistance/altered prosecution facts, but allegations were vague and undeveloped.
Court found Xiong never appealed the state convictions (45-day Wisconsin appeal deadline), so his claims are unexhausted and now procedurally defaulted; Xiong did not show cause and prejudice or actual innocence.
Court dismissed the § 2254 petition for procedural default and denied a certificate of appealability.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction / “in custody” under §2254	Xiong seeks federal review of state convictions; implies custody continues	State: Xiong is in federal custody and likely not in custody under state judgment	Court: Jurisdiction unclear; if state probation expired by 2019, §2254 jurisdiction lacking, but dismissal rests on procedural default instead
Merits / substance of claims	Convictions are “null and void” as “commercial crimes”; counsel ineffective; prosecutor tampered	State: Claims are vague, legally baseless, and not properly developed	Court: Allegations too vague to state a colorable habeas claim; merits not reached because of default
Exhaustion / procedural default	Xiong asserts federal habeas relief now	State: Xiong never appealed in Wisconsin; appeal period lapsed under state law	Court: Claims are unexhausted and procedurally defaulted; no cause/prejudice or actual-innocence showing to excuse default
Certificate of appealability (COA)	Xiong could appeal	Xiong’s claims are plainly barred; no substantial showing of constitutional violation	Court: Denied COA; reasonable jurists would not debate the dismissal

Kelley v. Zoeller, 800 F.3d 318 (7th Cir. 2015) (interpreting the §2254 “in custody” requirement)
O’Sullivan v. Boerckel, 526 U.S. 838 (U.S. 1999) (exhaustion requires presenting claims through state-court review)
Lemons v. O’Sullivan, 54 F.3d 357 (7th Cir. 1995) (exhaustion and state-court review requirement)
Perruquet v. Briley, 390 F.3d 505 (7th Cir. 2004) (procedural-default doctrine explained)
Edwards v. Carpenter, 529 U.S. 446 (U.S. 2000) (cause-and-prejudice standard to excuse default)
Harris v. McAdory, 334 F.3d 665 (7th Cir. 2003) (objective-factor requirement for cause)
Schlup v. Delo, 513 U.S. 298 (U.S. 1995) (actual-innocence gateway to excuse default)
Jones v. Calloway, 842 F.3d 454 (7th Cir. 2016) (actual-innocence standard discussion)
Tennard v. Dretke, 542 U.S. 274 (U.S. 2004) (standard for certificate of appealability)
Miller-El v. Cockrell, 537 U.S. 322 (U.S. 2003) (COA requires substantial showing of denial of constitutional right)