Subdiaz-Osorio v. Clements

Filing 8

ORDER signed by Judge J P Stadtmueller on 11/4/14: VACATING 5 the Court's Order of Dismissal and REOPENING CASE; within 30 days of entry of this order, Respondent shall file either a motion seeking dismissal of this action or an answer to the Petition; should Respondent file an answer, the parties shall abide by the briefing schedule set forth herein. See Order. (cc: Petitioner, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NICOLAS SUBDIAZ-OSORIO,
Petitioner,

Case No. 14-CV-1227-JPS

v.
MARC CLEMENTS,
Respondent.

ORDER

On October 15, 2014, the Court dismissed this case because the
petitioner had a petition for a writ of certiorari pending before the Supreme
Court. (Docket #5). Shortly after the Court entered its order, the petitioner
filed a letter informing the Court that the Supreme Court had denied
certiorari. (Docket #7). The Court will, therefore, vacate its previous dismissal
order and reopen the case.
The petitioner has paid the $5.00 filing fee, so the Court must screen
the petition.
First, the Court provides a small bit of background. After pleading
guilty in Kenosha County Circuit Court, the petitioner, Nicolas SubdiazOsorio (“Subdiaz-Osorio”), was convicted of First Degree Reckless Homicide,
a violation of Wis. Stat. § 940.02(1). Subdiaz-Osorio was sentenced to twenty
years of imprisonment and fifteen years of extended supervision. SubdiazOsorio is currently confined to the Dodge Correctional Institution in
Waupun, Wisconsin.
Rule 4 of the Rules Governing § 2254 Cases in the United States
District Courts authorizes a district court to conduct an initial screening of
habeas corpus petitions and to dismiss a petition summarily where “it plainly
appears from the face of the petition...that the petitioner is not entitled to

relief.” This rule provides the district court the power to dismiss both those
petitions that do not state a claim upon which relief may be granted and
those petitions that are factually frivolous. See Small v. Endicott, 998 F.2d 411,
414 (7th Cir. 1993). Upon an initial Rule 4 review of habeas petitions, the
court will analyze whether the petitioner has avoided statute of limitations
bars, exhausted available state remedies, avoided procedural default, and set
forth cognizable constitutional or federal law claims.
The court begins its Rule 4 review by examining the timeliness of
Subdiaz-Osorio’s petition. A state prisoner in custody pursuant to a state
court judgment has one year from the date “the judgment became final” to
seek federal habeas relief. 28 U.S.C. § 2244(d)(1)(A). A judgment becomes
final within the meaning of § 2244(d)(1)(A) when all direct appeals in the
state courts are concluded followed by either the completion or denial of
certiorari proceedings in the U.S. Supreme Court, or, if certiorari is not
sought, at the expiration of the 90 days allowed for filing for certiorari. See
Ray v. Clements, 700 F.3d 993, 1003 (citing Anderson v. Litscher, 281 F.3d 672,
675 (7th Cir. 2002)).
Here, it appears Subdiaz-Osorio’s petition is timely. Subdiaz-Osorio’s
conviction became final on October 14, 2014, when the Supreme Court
denied his petition for a writ of certiorari. He filed his petition before that
date, meaning that the petition is clearly timely.
The court continues its Rule 4 review by examining Subdiaz-Osorio’s
petition to determine whether he has exhausted his state remedies. The
district court may not address the merits of the constitutional claims raised
in a federal habeas petition “unless the state courts have had a full and fair
opportunity to review them.” Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991).
Accordingly, a state prisoner is required to exhaust the remedies available in
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state court before a district court will consider the merits of a federal habeas
petition. 28 U.S.C. § 2254(b)(1)(A); Dressler v. McCaughtry, 238 F.3d 908, 912
(7th Cir. 2001) (if petitioner “either failed to exhaust all available state
remedies or raise all claims before the state courts, his petition must be
denied without considering its merits.”). If a federal habeas petition has even
a single unexhausted claim, the district court may be required to dismiss the
entire petition and leave the petitioner with the choice of either returning to
state court to exhaust the claim or amending or resubmitting the petition to
present only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510 (1982).
Under Rhines v. Weber, 544 U.S. 269, 278 (2005), the Court should grant a stay
to allow the petitioner to return to state court to exhaust his claims when “the
petitioner had good cause for his failure to exhaust, his unexhausted claims
are potentially meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.” See also Purvis v. United
States, 662 F.3d 939, 944 (7th Cir. 2011) (applying Rhines to a mixed petitioner
brought under 28 U.S.C. § 2255). The Court should also allow the petitioner
to amend his petition to remove any unexhausted claims before dismissing
the petition. Rhines, 544 U.S. at 278. A petitioner exhausts his constitutional
claim when he presents it to the highest state court for a ruling on the merits.
Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir. 2007) (citing Picard v. Connor,
404 U.S. 270, 275 (1971); Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir. 2004).
Once the state's highest court has had a full and fair opportunity to pass
upon the merits of the claim, a prisoner is not required to present it again to
the state courts. Humphrey v. Cady, 405 U.S. 504, 516 n.18 (1972).
Here, it appears that the claims in Subdiaz-Osorio’s petition are
exhausted. Subdiaz-Osorio presents two Fourth-Amendment related claims,
both of which were presented to the Wisconsin Supreme Court and decided
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by that court. (Docket #1 at 6–7; Appendices 1, 2, 3). He also raises a Fifth
Amendment claim, which the Wisconsin Court of Appeals touched upon
briefly, but the Wisconsin Supreme Court seems to have addressed in more
detail. (Appendix 5). Last, he asserts that the courts applied an incorrect legal
standard to his case, and he exhausted this issue before the Wisconsin
Supreme Court. (Docket #1 at 9). Therefore, these claims appear to have been
fully exhausted in state court.
The court next reviews Subdiaz-Osorio’s petition under Rule 4 to
determine whether he has procedurally defaulted on any of his claims. Even
though a constitutional claim in a federal habeas petition has been exhausted,
the court is still barred from considering the claim if it has been procedurally
defaulted by the petitioner. See Mahaffey v. Schomig, 294 F.3d 907, 915 (7th Cir.
2002) (citing Boerckel v. O’Sullivan, 135 F.3d 1194, 1196–97 (7th Cir. 1998), rev’d
on other grounds by O’Sullivan v. Boerckel, 526 U.S. 838, 849 (1999)). A state
prisoner procedurally defaults on a constitutional claim in a habeas petition
when he fails to raise the claim in the state’s highest court in a timely fashion
or in the manner prescribed by state law. See O'Sullivan, 526 U.S. at 848;
Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000).
Here, the court finds that Subdiaz-Osorio has not procedurally
defaulted on his claims. Simply put, there is nothing that would indicate
procedural default. Subdiaz-Osorio seems to have properly raised each claim
before the appropriate courts.
The Court concludes its Rule 4 review by screening for patently
frivolous and speculative claims in Subdiaz-Osorio's federal habeas petition.
Ray v. Clements, 700 F.3d 993, 996 n.1 (7th Cir. 2012) (citing Small, 998 F.2d at
414, for the proposition that district courts may dismiss petitioners that fail
to state a claim or are factually frivolous).
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Subdiaz-Osorio’s claims are not frivolous and state a claim. Each, at
least on their face, raise the potential for relief. Because it does not plainly
appear that Subdiaz-Osorio’s claims are frivolous or speculative, the court
will direct the respondent to file an answer to Subdiaz-Osorio’s claims in the
petition.
Accordingly,
IT IS ORDERED that the Court’s previous order of dismissal (Docket
#5) be and the same is hereby VACATED and this case be and the same is
hereby REOPENED;
IT IS FURTHER ORDERED that the parties shall proceed in
accordance with the following schedule:
1.

Within 30 days of entry of this order, the respondent shall file
either an appropriate motion seeking dismissal of this action or
answer the petition, complying with Rule 5 of the Rules
Governing § 2254 Cases, and showing cause, if any, why the
writ should not issue; and

2.

If the respondent files an answer, then the parties should abide
by the following briefing schedule:
a.

The petitioner shall have 60 days after the filing of the
respondent’s answer within which to file a brief in
support of his petition, providing reasons why the writ
of habeas corpus should be issued. The petitioner is
reminded that, in accordance with 28 U.S.C. § 2248,
unless he disputes allegations made by the respondent
in his answer or motion to dismiss, those allegations
“shall be accepted as true except to the extent that the
judge finds from the evidence that they are not true.”

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b.

c.

3.

The respondent shall file an opposition brief, with
reasons why the writ of habeas corpus should not be
issued, within 60 days of service of petitioner’s brief, or
within 120 days from the date of this order if no brief is
filed by petitioner.
The petitioner may then file a reply brief, if he wishes to
do so, within 30 days after the respondent has filed a
response brief.

If the respondent files a motion in lieu of an answer, then the
parties should abide by the following briefing schedule:
a.

The petitioner shall have 30 days following the filing of
respondent’s dispositive motion and accompanying
brief within which to file a brief in opposition to that
motion.

b.

The respondent shall have 15 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 caption, cover page, table of contents,
table of authorities, and/or signature block.
Because Petitioner's filings will be electronically scanned and entered
on the docket upon receipt by the clerk, Petitioner need not mail to counsel
for the respondent copies of documents sent to the Court.
Pursuant to Rule 4 of the Rules Governing § 2254 Cases, as well as a
Memorandum of Understanding entered into between the Wisconsin
Department of Justice and the U.S. District Clerk of Court for the Eastern
District of Wisconsin, a copy of the petition and this order have been sent via

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a Notice of Electronic Filing (“NEF”) to State of Wisconsin respondent(s)
through the Attorney General for the State of Wisconsin through the
Criminal Appeals Unit Director and lead secretary. The Department of
Justice will inform the Court within 21 days from the date of the NEF
whether the Department will not accept service of process on behalf of the
respondent, the reason for not accepting service for the respondent, and the
last known address of the respondent. The Department of Justice will
provide the pleadings to the respondent on whose behalf it has agreed to
accept service of process.
Dated at Milwaukee, Wisconsin, this 4th day of November, 2014.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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