Burris v. Baenen

Filing 6

ORDER signed by Judge Rudolph T. Randa on 5/17/2012 GRANTING 3 Motion for Leave to Proceed in forma pauperis. Baenen must file answer to Burris' petition by 7/18/2012; answer must comply with requirements of Rule 5 of Rules Governing Section 2254 cases in U.S. District Courts. (cc: all counsel, via US mail to plaintiff) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DONOVAN M. BURRIS,
Petitioner,
-vs-

Case No. 12-C-465

MICHAEL BAENEN,
Warden of Green Bay
Correctional Institution,
Respondent.

DECISION AND ORDER

The Petitioner, Donovan M. Burris (“Burris”), is currently in the custody of
Respondent Michael Baenen (“Baenen”) at the Green Bay Correctional Institution for his
May 2, 2008, conviction by the Circuit Court for Milwaukee County, Wisconsin. Burris was
convicted of first-degree reckless injury and possession of a firearm by felon. Burris is
serving a 23-year sentence, consisting of 18 years of incarceration to be followed by 7 years
of extended supervision.
Burris seeks leave to proceed in forma pauperis. This matter is also before the
Court for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases in
United States District Courts.
To authorize a litigant to proceed in forma pauperis, the Court must make two
determinations: first, whether the litigant is unable to pay the costs of commencing the

action; and second, whether the action is frivolous or malicious. 28 U.S.C. §§ 1915(a) and
(e)(2). Burris, who is single and has no dependents, is not employed. He also does not own
any tangible or intangible assets. Burris has demonstrated that he is unable to pay the $5.00
fee for filing an application for relief pursuant to § 2254.
Rule Four states that after preliminary consideration by a district court judge,
[i]f it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district court, the
judge must dismiss the petition and direct the clerk to notify the
petitioner. If the petition is not dismissed, the judge must order
the respondent to file an answer, motion, or other response
within a fixed time, or to take other action the judge may order.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
A valid application for a writ of a habeas corpus must allege that the petitioner
is in custody pursuant to a state court judgment in violation of the Constitution. 28 U.S.C.
§ 2254(a). Additionally, the application must not be granted unless the applicant has
exhausted his available remedies in state court or there is no existing fair corrective process
under state law to protect the rights of the petitioner. See 28 U.S.C. § 2254(b)(1).
Burris is in custody pursuant to the judgment he challenges. With respect to
the exhaustion requirement, claims are exhausted when they have presented to the highest
state court for a ruling on the merits or when no other state remedies exist. 28 U.S.C.
§ 2254(b)(1). Before a federal court may consider the merits of a petitioner’s claims, the
petitioner must give the state’s highest court an opportunity to review each claim. O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999). In Wisconsin, this means that state prisoners who

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wish to present their claims in federal court must first present the operative facts and
controlling legal principles of those claims to the Wisconsin Court of Appeals and then to
the Wisconsin Supreme Court. Moore v. Casperson, 345 F.3d 474, 486 (7th Cir. 2003).
Based upon Burris’ submissions, it appears that all available state remedies have been
exhausted as to the ground for relief he has stated in his petition.
Burris maintains that the Wisconsin Supreme Court’s conclusion regarding a
supplemental jury instruction relied upon an unreasonable application of clearly established
federal law under Waddington v. Sarausad, 555 U.S. 179 (2009) and Boyde v. California,
494 U.S. 370 (1990).
The ground raised by Burris presents an arguable constitutional violation
which, if shown, would entitle him to federal habeas corpus relief. As such, Burris’ motion
for leave to proceed in forma pauperis is granted. Furthermore, summary dismissal under
Rule 4 is inappropriate because it does not appear from the face of Burris’ petition that his
claim is plainly meritless. Baenen will, therefore, be required to file an answer to Burris’s
petition for a writ of habeas corpus.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
Burris’ motion for leave to proceed in forma pauperis (ECF No. 3) is
GRANTED;
Baenen MUST file an answer to Burris’ petition on or before July 18, 2012;

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and
Such answer MUST comply with the requirements of Rule 5 of the Rules Governing
Section 2254 Cases in the United States District Courts;
Dated at Milwaukee, Wisconsin, this 17th day of May, 2012.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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