Varellas v. Julian

Filing 3

ORDER signed by Judge J. P. Stadtmueller on 12/14/2016. Within 30 days respondent to either file appropriate motion seeking dismissal of this action or answer petition. IF RESPONDENT FILES ANSWER, briefing to proceed as follows: petitioner's bri ef in support of his petition due within 60 days of respondent's answer; respondent's opposition brief due within 60 days of service of petitioner's brief or 120 days of this Order if no brief filed by petitioner; petitioner's rep ly due within 30 days of respondent's brief. IF RESPONDENT FILES MOTION, briefing to proceed as follows: petitioner's brief in opposition due within 30 days of filing of respondent's motion; respondent's reply due within 15 days of filing of petitioner's brief. Civil L.R. 7(f) governs page limitations. See Order for details. (cc: all counsel, via mail to William Varellas at Terre Haute FCI)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIAM J. VARELLAS,
Petitioner,

Case No. 16-CV-1440-JPS

v.
S. JULIAN,
Respondent.

ORDER

On October 27, 2016, William J. Varellas (“Varellas”) filed this petition
pursuant to 28 U.S.C. § 2254, asserting that his state court sentence was
imposed in violation of the Constitution and common law. (Docket #1). In the
mid-1980s, Varellas killed Mr. Sanford Gross, after forcing Gross to sign
various checks to Varellas under duress. (Docket #1-1 at 60). Varellas
committed these crimes in association with two others. Id. In 1984, before the
body of the victim was found, Varellas was charged and convicted of a
conspiracy to kidnap Gross in the federal court for the Western District of
Michigan. Id. at 170. In 1991, after Gross’ body was found in Racine County,
the State of Wisconsin obtained a conviction of Varellas for first degree
murder and imposed a life sentence consecutive to his existing federal
sentence. Id. at 58, 60. Varellas’ petition alleges that the Wisconsin sentence
was imposed in violation of the Fifth and Fourteenth Amendment and the
“merger” doctrine. (Docket #1 at 5).
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
Varellas’ 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 (2012) (citing Anderson v. Litscher, 281 F.3d 672, 675 (7th
Cir. 2002)).
Here, it appears Varellas’ petition is timely. From the face of the
petition, it appears that Varellas’ conviction became final 90 days after his
direct appeal concluded, on January 26, 1994. (Docket #1 at 2). On direct
appeal, he did not file a petition for certiorari to the Wisconsin or United
States Supreme Court. See id. at 2-3. Thus, Varellas had 365 days from April
26, 1994, to file his habeas petition. See Ray, 700 F.3d at 1003. It was not filed
until December 4, 2014, and so appears far out of time. However, such a
delay is permissible under Wisconsin law. The applicable statute, Wis. Stat.
§ 974.06, allows such a motion to be filed at any time without limitation.
Varellas appealed his post-conviction motion through the Wisconsin courts.
(Docket #1 at 3-4). The United States Supreme Court denied review of
Varellas' post-conviction motion on October 3, 2016. Id. at 5. The complaint
therefore appears timely.
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Varellas’ claim may nevertheless be invalid. Review of the Wisconsin
state court opinions attached to the petition reveals that Varellas’ postconviction motion was denied by citation to Wisconsin v. Escalona-Naranjo,
517 N.W.2d 157 (1994); see, e.g., (Docket #1-1 at 13-15). Thus, it appears
Varellas’ claim is likely procedurally defaulted as having been denied on the
basis of Escalona-Naranjo and/or Varellas’ re-hashing of previously-rejected
arguments. See Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000). If the
respondent establishes procedural default, then the Court will not be able to
consider Varellas’ claims unless he establishes cause-and-prejudice or that a
fundamental miscarriage of justice will result from the Court not hearing his
claims. “A federal court may excuse a procedural default if the habeas
petitioner establishes that (1) there was good cause for the default and
consequent prejudice, or (2) a fundamental miscarriage of justice would
result if the defaulted claim is not heard.” Johnson v. Foster, 786 F.3d 501, 505
(7th Cir. 2015) (citing Murray v. Carrier, 477 U.S. 478, 491 (1986); Schlup v.
Delo, 513 U.S. 298, 315 (1995)). Thus, if the respondent raises a proceduraldefault argument, Varellas should respond to the merits of that argument
and also attempt to establish either cause-and-prejudice or a fundamental
miscarriage of justice.
Because the application of procedural default is not absolutely clear,
the Court will allow the petition to proceeding past the screening stage.
Respondent may raise and support any desired defenses and Varellas will be
permitted to respond. It is also possible that Varellas simply does not state
a claim for relief. All of these issues are for the respondent to consider in
responding to Varellas’ petition.
Accordingly,
IT IS ORDERED that the parties shall proceed in accordance with the
following schedule:
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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.

b.

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.

c.

3.

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.”

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.
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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
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 14th day of December, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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