Barnes v. State of Wisconsin

Filing 5

ORDER signed by Judge Pamela Pepper on 8/17/2016 DENYING AS MOOT 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. The court ORDERS that petitioner may proceed on both of the claims in his habeas petition. The court ORDERS that respondent shall answer or otherwise respond to the petition within 60 days of the date of this order. (cc: all counsel; by US Mail to Petitioner) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES W. BARNES,

Case No. 16-cv-962-pp

Petitioner,
v.
MARIA SILAO, Superintendent,
Gordon Correctional Center,1
Respondent.

ORDER SCREENING §2254 HABEAS CORPUS PETITION (DKT. NO. 1), AND
ORDERING THE RESPONDENT TO ANSWER OR OTHERWISE RESPOND
James W. Barnes, who is represented by counsel, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. §2254. Dkt. No. 1. He has paid the
$5.00 filing fee.2 The case is now before the court for screening pursuant to
Rule 4 of the Rules Governing §2254 Proceedings.
I.

BACKGROUND
In Racine County Circuit Court, the petitioner was convicted of one count

of robbery with the use of force while armed, based on a plea of no contest.
Dkt. No. 1-1 at 4. Following his conviction, the petitioner challenged his plea in

Maria Silao is the Superintendent of Gordon Correctional Center and is the
petitioner’s present custodian. The court directs the clerk’s office to substitute
Ms. Silao as the proper respondent. See Rumsfeld v. Padilla, 542 U.S. 426, 435
(2004) (“[T]he default rule is that the proper respondent is the warden of the
facility where the prisoner is being held . . . .”).
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The petitioner also filed a motion for leave to proceed without prepayment of
the filing fee. Dkt. No. 2. Because he has paid the $5.00 filing fee, the court will
deny that motion as moot.
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a motion for post-conviction relief. Id. at 4. His counsel filed a no-merit report
in the state trial court, and, in an opinion dated June 6, 2012, the state
appellate court affirmed the trial court’s conclusion “that there would be no
arguable merit to an appellate challenge to [the petitioner’s] plea.” Id. The
petitioner then moved the trial court for an order modifying his sentence,
arguing that the trial court relied on incorrect information regarding the felony
classification of the charge to which the petitioner pled guilty. Id. The trial
court denied that motion. Id. In an opinion dated March 24, 2015, the state
appellate court affirmed the trial court’s decision. Id. The Wisconsin Supreme
Court denied the petitioner’s petition for review in an order dated August 5,
2015. The petitioner did not file a petition for a writ of certiorari in the United
States Supreme Court.
The petitioner subsequently filed this federal habeas petition. Dkt. No. 1.
The petition sets forth grounds for habeas relief related to his sentence: (1) that
the state trial court erroneously sentenced him to a term of imprisonment
based on a different class of felony for which he was convicted; and (2) that the
state trial court relied on inaccurate information concerning the petitioner’s
criminal history when sentencing him, in violation of his right to due process.
Id. at 6-8.
II.

THE PETITIONER MAY PROCEED ON BOTH CLAIMS IN HIS
PETITION.
The court now will review, or “screen” the petition. Rule 4 of the Rules

Governing §2254 Proceedings says:

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If it plainly appears from the face of 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 . . . .
At this stage, the court reviews the petition and its exhibits to determine if the
petitioner has set forth claims arising under the Constitution or federal law
that are cognizable on habeas review, exhausted in the state court system, and
not procedurally defaulted.
The petitioner’s claims that his sentence was imposed based on
inaccurate information, in violation of his due process rights, are cognizable on
habeas review. See e.g., Simonson v. Hepp, 549 F.3d 1101, 1107 (7th Cir.
2008) (“Due process demands that a court sentence a defendant upon accurate
information.”); Lechner v. Frank, 341 F.3d 635, 639 (7th Cir. 2003) (“A
defendant who requests re-sentencing due to the use of inaccurate information
at the original sentencing must show both that information before the
sentencing court was inaccurate and that the sentencing court relied on the
inaccurate information in the sentencing”). At the screening stage, the court
expresses no view on the merits of any of the petitioner’s claims; the court finds
only that the petitioner has stated claims that are generally cognizable on
habeas review.
Next, in order to decide whether the petitioner’s habeas case can move
forward, the court must determine whether it appears, on the face of the
petition, that the petitioner has exhausted his state remedies on these claims.
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Section 2254 states, “An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not be
granted unless it appears that . . . the applicant has exhausted the remedies
available in the courts of the State . . . .” The United States Court of Appeals for
the Seventh Circuit has held that a district court judge cannot consider the
merits of a petitioner’s habeas argument “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). A prisoner exhausts a constitutional claim when he has
presented it to the highest state court for a ruling on the merits. O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); Arrieta v. Battaglia, 461 F.3d 861, 863
(7th Cir. 2006). Once the state’s highest court has had a full and fair
opportunity to evaluate 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).
From the face of the petition and the attachments to the petition, it
appears that the petitioner has satisfied this requirement; at this preliminary
stage, it appears that he presented each of his claims to each level of the
Wisconsin state courts, and ultimately was denied relief. The court notes,
however, that at this stage in the case, the respondent has not had an
opportunity to weigh in on the exhaustion question; nothing in this order
prevents the respondent from arguing that the petitioner has not exhausted his
claims, or from filing pleadings based on that argument.

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Finally, the court considers whether the petitioner procedurally defaulted
any of his claims. Even if a petitioner has exhausted review of a constitutional
claim in the state courts, it is possible that a federal habeas court can be
foreclosed from reviewing the claim on the merits because of a “procedural
default.” A criminal defendant “procedurally defaults” a claim—and loses the
right to federal habeas review—if the last state court that issued judgment “
‘clearly and expressly’ states that its judgment rests on a state procedural bar.”
Harris v. Reed, 489 U.S. 255, 263 (1989) (quoting Caldwell v. Mississippi, 472
U.S. 320, 327 (1985)). There can be several kinds of state procedural bars,
including, but not limited to, failing “to raise a claim of error at the time or in
the place that state law requires.” Trevino v. Thaler, --- U.S. ---, 133 S. Ct.
1911, 1917 (2013). At this point in the case, the court can discern no
procedural default from the face of the petition or its attachments. Therefore
the court will allow all four of the claims in the petitioner’s habeas case to
proceed.
III.

CONCLUSION
The court ORDERS that the petitioner may proceed on both of the claims

in his habeas petition.
The court DENIES AS MOOT the petitioner’s motion to proceed without
prepayment of the filing fee. Dkt. No. 2.
The court ORDERS that within sixty (60) days of the date of this order,
the respondent shall ANSWER OR OTHERWISE RESPOND to the petition,

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complying with Rule 5 of the Rules Governing §2254 Cases, and showing
cause, if any, why the writ should not issue.
The court ORDERS that the parties must comply with the following
schedule for filing briefs on the merits of the petitioner’s claims:
(1) the petitioner has forty-five (45) days after the respondent files his
answer to file his brief in support of his petition;
(2) the respondent has forty-five (45) days after the petitioner files his
initial brief to file the respondent’s brief in opposition; and
(3) the petitioner has thirty (30) days after the respondent files his
opposition brief to file a reply brief, if the petitioner chooses to file such a brief.
If, instead of filing an answer, the respondent files a dispositive motion,
the respondent must include a brief and other relevant materials in support of
the motion. The petitioner then must file a brief in opposition to that motion
within forty-five (45) days of the date the respondent files the motion. If the
respondent chooses to file a reply brief, he must do so within thirty (30) days
of the date the petitioner files the opposition brief.
Pursuant to Civil Local Rule 7(f), briefs in support of or in opposition to
the habeas petition and any dispositive motions shall not exceed thirty (30)
pages, and reply briefs may not exceed fifteen (15) pages, not counting any
statements of facts, exhibits and affidavits.
Pursuant to the Memorandum of Understanding between the Attorney
General and this court, the Attorney General for the State of Wisconsin and

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Maria Silao, Warden of the Gordon Correctional Center will receive copies of the
petition and this order electronically.
Dated in Milwaukee, Wisconsin this 17th day of August, 2016.

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