NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
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, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 16‐C‐1183
JOHN LITSCHER, et al., William C. Griesbach,
Defendants‐Appellees. 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. CONST. 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. FED. R.
APP. P. 34(a)(2)(B).
No. 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 first‐degree sexual assault, WIS. STAT. § 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, WIS. STAT. § 940.225(3) (1993–94). His sentence
for this second sex offense was discharged in August 1997.
Meanwhile, in December 1993, Wisconsin had enacted a registration requirement
for anyone imprisoned for, or later convicted of, first‐ or second‐degree sexual assault.
See WIS. STAT. § 175.45 (1993–94). That registration requirement was extended in 1995 to
persons imprisoned for third‐degree sexual assault. See WIS. STAT. § 301.45 (1995–96).
Then, effective in July 2007, the state mandated lifetime GPS monitoring for persons
released after conviction, or acquitted due to mental disease, of a “serious child sex
offense.” WIS. STAT. § 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 offense. WIS. STAT. § 301.48(2)(7), (7m)
(2007–08); see id. § 301.46(2m)(am) (1995–96). Durand initially was unaffected by the
tracking requirement, but in 2015 he was incarcerated after a repeat conviction for drunk
driving. See WIS. STAT. § 346.63(1)(a). Prison officials 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 Plaintiff complains that he is subject to an impermissible ex post facto
law that requires him, as a sex offender, to register as a sex offender 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 not
No. 16‐3569 Page 3
have a retroactive effect on Durand. Wisconsin did not subject sex offenders to GPS
monitoring until after Durand’s sex crimes were committed, but the monitoring was
triggered by his conviction for drunk driving in 2015. He committed that crime after the
GPS monitoring law was passed. Increases in punishment of new crimes, even when
based on crimes committed 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 Offender 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 offenders is not punishment); Mueller v. Raemisch, 740 F.3d 1128, 1133–35
(7th Cir. 2014) (Wisconsin’s requirement that sex offenders update information and pay
annual fee for sex‐offender 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 offenses 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 offenses, 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
offender while still on probation did not violate Ex Post Facto Clause because statute was
intended to be nonpunitive and its effects 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 matter 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 of
No. 16‐3569 Page 4
petition for writ of certiorari and action for declaratory judgment under WIS. STAT.
§ 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
offender). And for clarification, we modify the judgment to be without prejudice to any
state‐law claim available to Durand.
One other matter 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 omitted 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 modified to be without prejudice as to any state‐law claim concerning the
application of GPS monitoring, and, as MODIFIED, the judgment is AFFIRMED.