# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 11, 2017 *

Decided February 3, 2017

Before

FRANK H. EASTERBROOK, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 16

‐ 3569

ANTONIO DURAND,

Plaintiff

‐ Appellant

,

v

.

J OHN LITSCHER, et al.,

Defendants

‐ Appellees. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 16

‐ C

‐ 1183

William C. Griesbach,

Chief Judge

.

O R D E R

Employees of the state’s Sex Offender Registry Program concluded that a

Wisconsin statute enacted in 2009 mandates that Antonio Durand wear a GPS tracking

device for the rest of his life because twice he had been convicted of a sex offense, most

recently in 1993. In this action against several Program administrators and the Secretary

of the state’s prison system, Durand claims that, specifically as to him, GPS monitoring

violates the Ex Post Facto Clause, U.S. C ONST

. art. I, § 10. He also contends that the

* The defendants were not served with process in the district court and are not

participating in this appeal. We have unanimously agreed to decide this case without oral

argument because the issues have been authoritatively decided. F ED

. R.

A PP

. P. 34(a)(2)(B). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 16

‐ 3569 Page 2

statute, as written, does not apply to him. The district court dismissed the action

sua sponte, and Durand appeals.

Durand was convicted in 1983 of fi rst

‐ degree sexual assault, W IS

. S TAT

. § 940.225(1)

(1983–84). His sentence for that crime was discharged in 1988. Then in 1993 he was

convicted of third

‐ degree sexual assault, W IS

. S TAT

. § 940.225(3) (1993–94). His sentence

for this second sex o ff ense was discharged in August 1997.

Meanwhile, in December 1993, Wisconsin had enacted a registration requirement

for anyone imprisoned for, or later convicted of, fi rst

‐ or second

‐ degree sexual assault.

See W IS

. S TAT

. § 175.45 (1993–94). That registration requirement was extended in 1995 to

persons imprisoned for third

‐ degree sexual assault. See W IS

. S TAT

. § 301.45 (1995–96).

Then, e ff ective in July 2007, the state mandated lifetime GPS monitoring for persons

released after conviction, or acqui tt ed due to mental disease, of a “serious child sex

o ff ense.” W IS

. S TAT

. § 301.48 (2005–06). This tracking mandate soon was broadened to

cover any person later released from incarceration in Wisconsin—for whatever crime—if

that person has two or more convictions for a sex o ff ense. W IS

. S TAT

. § 301.48(2)(7), (7m)

(2007–08); see id

. § 301.46(2m)(am) (1995–96). Durand initially was una ff ected by the

tracking requirement, but in 2015 he was incarcerated after a repeat conviction for drunk

driving. See W IS

. S TAT

. § 346.63(1)(a). Prison o ffi cials alerted him that he would be

required to wear a GPS tracker after his release in May 2016, prompting this lawsuit

seeking damages and an end to GPS monitoring.

The district court apparently understood Durand’s claims to arise under 42 U.S.C.

§ 1983 and Wisconsin law. The court reviewed the federal claim when presented with

Durand’s application to proceed in forma pauperis, see 28 U.S.C. § 1915(a)(1), (e)(2), and

dismissed the action with a brief explanation:

The Plainti ff complains that he is subject to an impermissible ex post facto

law that requires him, as a sex o ff ender, to register as a sex o ff ender and

wear a GPS tracking device. Such an argument is foreclosed by the Seventh

Circuit’s recent decision in Belleau v. Wall

, 811 F.3d 929, 937 (7th Cir. 2016),

where the court of appeals found: “A statute is an ex post facto law only if

it imposes punishment. The monitoring law is not punishment; it is

prevention.”

On appeal Durand principally challenges the district court’s reliance on Belleau v.

Wall to reject his claim that GPS monitoring, as applied to him, violates the Ex Post Facto

Clause. The challenge fails on two independent grounds. First, the law simply does notNo. 16

‐ 3569 Page 3

have a retroactive e ff ect on Durand. Wisconsin did not subject sex o ff enders to GPS

monitoring until after Durand’s sex crimes were commi tt ed, but the monitoring was

triggered by his conviction for drunk driving in 2015. He commi tt ed that crime after the

GPS monitoring law was passed. Increases in punishment of new crimes, even when

based on crimes commi tt ed before enactment of the new legislation, do not violate the Ex

Post Facto Clause. United States v. Jordan

, 870 F.2d 1310, 1315 (7th Cir. 1989), citing Gryger

v. Burke

, 334 U.S. 728, 732 (1948); see also Cox v. Hart

, 260 U.S. 427, 435 (1922) (“A statute

is not made retroactive merely because it draws upon antecedent facts for its operation.”).

Second, even if the GPS law could be deemed retroactive as applied to Durand, in

Belleau we concluded that GPS monitoring is not punitive and thus Wisconsin’s statute

still would not violate the Ex Post Facto Clause. 811 F.3d at 937–38; see Smith v. Doe

,

538 U.S. 84, 97–106 (2003) (concluding that Alaska’s Sex O ff ender Registration Act,

although retroactive, is not punitive and thus does not violate Ex Post Facto Clause);

Kansas v. Hendricks

, 521 U.S. 346, 368–71 (1997) (holding that civil commitment of

compulsive sex o ff enders is not punishment); Mueller v. Raemisch

, 740 F.3d 1128, 1133–35

(7th Cir. 2014) (Wisconsin’s requirement that sex o ff enders update information and pay

annual fee for sex

‐ o ff ender registry is not punishment). Durand seeks to distinguish

Belleau because his GPS monitoring was triggered by release from incarceration for drunk

driving, not a civil commitment imposed after the commission of sex o ff enses against

children. But our opinion in Belleau does not turn on a temporal proximity between a

prisoner’s release and his sex crimes. Instead we concluded that GPS monitoring is about

preventing future sex o ff enses, not punishing previous crimes. Belleau

, 811 F.3d at 937;

see also Doe v. Bredesen

, 507 F.3d 998, 1004–07 (6th Cir. 2007) (concluding that newly

enacted Tennessee statute authorizing GPS monitoring of previously convicted sex

o ff ender while still on probation did not violate Ex Post Facto Clause because statute was

intended to be nonpunitive and its e ff ects were not so punitive as to negate that intent).

In his complaint Durand also contended that the Wisconsin statute is being

misapplied to him because, in his view, the monitoring requirement covers only persons

convicted of sex crimes after its enactment. A district court may decline to exercise

supplemental jurisdiction, and the presumption is that the court will do so if all federal

claims have been dismissed before trial. See 28 U.S.C. § 1367(c)(3); RWJ Mgmt. Co. v. BP

Prods. N. Am., Inc., 672 F.3d 476, 479–80 (7th Cir. 2012). This is what we understand the

district court to have done, and that decision was not an abuse of discretion. If Durand

believes that, as a ma tt er of state law, the monitoring requirement has been applied to

him incorrectly, he still can seek relief in the Wisconsin courts. See State ex rel. Kaufman v.

Blechinger

, 862 N.W.2d 618 (Wis. Ct. App. 2015) (unpublished) (noting availability ofNo. 16

‐ 3569 Page 4

petition for writ of certiorari and action for declaratory judgment under W IS

. S TAT

. § 806.04(2) to challenge application of GPS monitoring requirement); State v. Brown

, 680

N.W.2d 833 (Wis. Ct. App. 2004) (unpublished) (entertaining postconviction petition

challenging directive from Department of Corrections that petitioner register as sex

o ff ender). And for clari fi cation, we modify the judgment to be without prejudice to any

state

‐ law claim available to Durand.

One other ma tt er remains. In his notice of appeal, Durand asserts that the district

judge should have recused himself from this litigation because he led Durand’s

prosecution in 1993 for third

‐ degree sexual assault. That conviction, Durand notes,

eventually caused the state to apply the registration and GPS statutes to him. The judge

apparently overlooked his role in Durand’s prosecution and the potential appearance of

impropriety, and thus he did not analyze whether recusal was required under 28 U.S.C.

§ 455. See United States v. Herrera–Valdez

, 826 F.3d 912, 918–19 (7th Cir. 2016); United States

v. Smith

, 775 F.3d 879, 881–82 (7th Cir. 2015)

. But in his appellate brief Durand says

nothing about the judge’s participation, and thus any appellate claim is waived.

See Roberts v. Columbia Coll. Chi.

, 821 F.3d 855, 862 n.2 (7th Cir. 2016) (noting that

arguments omi tt ed from appellant’s opening brief are waived); Kathrein v. City of

Evanston, Ill.

, 752 F.3d 680, 689 n.6 (7th Cir. 2014) (explaining that rules of waiver apply

to pro se litigants). In any event, the judge’s participation was harmless even if erroneous,

since our review is de novo. See Liljeberg v. Health Servs. Acquisition Corp.

, 486 U.S. 847,

862 (1988) (recognizing that harmless

‐ error review applies to violations of § 455(a));

Williamson v. Ind. Univ.

, 345 F.3d 459, 464–65 (7th Cir. 2003) (concluding that failure to

recuse was harmless in part because judgment was reviewed de novo on appeal).

We have reviewed Durand’s remaining contentions, and none has merit. The

judgment is modi fi ed to be without prejudice as to any state

‐ law claim concerning the

application of GPS monitoring, and, as MODIFIED, the judgment is AFFIRMED.