Ziegler v. Rice

Filing 6

ORDER signed by Judge Lynn Adelman on 4/5/13 that the clerk shall substitute Chris Krueger, Superintendent of the John C. Burke Correctional Center, as the respondent in this case. Further ordering that within 30 days of the date of this order respon dent ANSWER the petition, showing cause, if any, why the writ should not issue. Further ordering that unless respondent files a dispositive motion with its answer the parties shall abide by the briefing schedule set forth in the order. (cc: all counsel, via USPS to petitioner, AAG Gregory Weber, respondent w/enc.)(dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DAVID ALLEN ZIEGLER,
Petitioner,
v.

Case No. 13-CV-00250

STATE OF WISCONSIN, and
QUALA CHAMPAGNE,
Respondents.

ORDER
Pro se petitioner David Ziegler filed this petition pursuant to 28 U.S.C. § 2254,
asserting that his state court conviction and sentence were imposed in violation of the
Constitution. Petitioner was convicted in Milwaukee County Circuit Court of five counts of
manufacturing, distributing or delivering cocaine under Wis. Stat. § 961.41(1). Pursuant to
Rule 4 of the Rules Governing § 2254 Cases, I must give the case prompt initial
consideration.
If 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, Rules Governing § 2254 Cases. During my initial review of habeas petitions, I look
to see whether the petitioner has set forth cognizable constitutional or federal law claims
and exhausted available state remedies. Having reviewed the petition, it does not plainly
appear that the petitioner is not entitled to relief. One of petitioner’s claims is that his trial
counsel was ineffective because he advised petitioner to enter a guilty plea. Ineffective

assistance of counsel is clearly a constitutional ground for habeas relief under Strickland
v. Washington, 466 U.S. 668 (1984), and its progeny. Therefore, I will order respondent
to answer the petition. I will also order the clerk to substitute the Superintendent of the
John C. Burke Correctional Center, Chris Krueger, as the respondent in this case because
that is the institution where petitioner is currently being held.
THEREFORE, IT IS ORDERED that the clerk shall substitute Chris Krueger,
Superintendent of the John C. Burke Correctional Center, as the respondent in this case.
IT IS FURTHER ORDERED that within 30 days of the date of this order respondent
ANSWER the petition, complying with Rule 5 of the Rules Governing § 2254 Cases, and
showing cause, if any, why the writ should not issue.
FURTHER, IT IS ORDERED that unless respondent files a dispositive motion with
its answer the parties shall abide by the following schedule regarding the filing of briefs on
the merits of petitioner’s claims: (1) petitioner shall have 45 days following the filing of
respondent’s answer within which to file his brief in support of his petition; (2) respondent
shall have 45 days following the filing of petitioner’s initial brief within which to file a brief
in opposition; and (3) petitioner shall have 30 days following the filing of respondent’s
opposition brief within which to file a reply brief, if any.
In the event that respondent files a dispositive motion and supporting brief with its
answer, this briefing schedule will be suspended and the briefing schedule will be as
follows: (1) petitioner shall have 45 days following the filing of respondent’s dispositive
motion and supporting initial brief within which to file a brief in opposition; and

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(2) respondent shall have 30 days following the filing of petitioner’s opposition brief within
which to file a reply brief, if any.
Pursuant to Civil L.R. 7(f), the following page limitations apply: briefs in support of
or in opposition to the habeas petition or a dispositive motion filed by respondent must not
exceed thirty pages and reply briefs must not exceed fifteen pages, not counting any
statements of facts, exhibits, and affidavits.
Petitioner is advised that he must send copies of all future filings with the court to
counsel for respondent, no matter whether in letter, brief, memorandum, or other form.
Until respondent files his or her answer, these copies should be sent to Gregory Weber at
the address below.
Pursuant to Rule 4 of the Rules Governing § 2254 Cases, copies of the petition and
this order will be mailed to respondent Chris Krueger and to the Attorney General for the
State of Wisconsin, c/o Gregory Weber, Assistant Attorney General, P.O. Box 7857,
Madison, WI 53707.
Dated at Milwaukee, Wisconsin, this 5th day of April 2013.

s/ Lynn Adelman
__________________________________
LYNN ADELMAN
District Judge

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