Garcia v. Boughton
Filing
13
ORDER signed by Judge J.P. Stadtmueller on 5/10/2017. Within 30 days, respondent to file either appropriate motion seeking dismissal of this action or answer petition. IF RESPONDENT FILES ANSWER, briefing to proceed as follows: petitioner's br ief in support of his petition due within 60 days of filing 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 is filed by petitioner; petitio ner's reply 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 Victor Garcia at Wisconsin Secure Program Facility)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VICTOR GARCIA,
Petitioner,
v.
GARY BOUGHTON,
Respondent.
Case No. 17‐CV‐421‐JPS
ORDER
On May 1, 2017, Victor Garcia (“Garcia”) filed a second amended
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket #12).
As noted previously, Garcia was convicted of various felony charges related
to a burglary and is currently confined in the Wisconsin Secure Program
Facility. (Docket #6 at 1). Rule 4 of the Rules Governing Section 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.
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The court begins its Rule 4 review by examining the timeliness of
Garcia’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 ninety days allowed for filing for certiorari. See Ray v.
Clements, 700 F.3d 993, 1003 (7th Cir. 2012).
Here, it appears that Garcia’s petition is may be untimely. According
to the petition and publicly available information on Garcia’s underlying
criminal case, State of Wisconsin v. Victor Garcia, 2009‐CF–807 (Rock Cnty. Cir.
Ct.), Garcia was convicted in July 2010. Garcia filed a state post‐conviction
motion in 2012, via post‐conviction counsel, alleging ineffectiveness on the
part of his trial counsel. This was finally denied in September 2014. He filed
a second state post‐conviction motion, pro se, in December 2014, arguing that
his counsel on the first post‐conviction motion was ineffective in failing to
raise certain arguments in that motion. That motion too was denied, as of
June 2016. The instant case was filed on March 22, 2017. (Docket #1). It
appears, then, that despite any tolling afforded by the pendency of Garcia’s
state post‐conviction motions, the statute of limitations may have run on his
habeas corpus petition. Because the limitations issue is not clear on this
record, however, the Court will allow Garcia to proceed past screening.
The court continues its Rule 4 review by examining Garcia’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
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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
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.”). 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)). 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 Garcia’s petition have been
exhausted. Garcia presents the following three of claims for relief in his
petition: 1) in assessing his first post‐conviction motion, the Wisconsin Court
of Appeals erred in refusing to take note of Garcia’s repeated attempts to
highlight his counsel’s ineffectiveness; 2) in assessing his second post‐
conviction motion, the Wisconsin Court of Appeals erred in finding that his
post‐conviction counsel was not ineffective; and 3) actual innocence, based
on a favorable finding on the first or second claim. (Docket #12 at 6‐11). The
Wisconsin Supreme Court denied Garcia’s petition for review of the Court
of Appeals’ rulings on these claims. Therefore, these claims appear to have
been fully exhausted in state court.
The court next reviews Garcia’s petition under Rule 4 to determine
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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). 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. Thomas v. McCaughtry, 201
F.3d 995, 1000 (7th Cir. 2000).
Here, it appears that Garcia may have procedurally defaulted on at
least some of his claims. In the latest opinion from the Wisconsin Court of
Appeals in Garcia’s saga, dated April 27, 2016, the court mentions that Garcia
may be barred by a procedural misstep. (Docket #12‐1 at 29‐35). Specifically,
the court found that Garcia should have raised certain claims in his first post‐
conviction motion, and his failure to do so could bar him from bringing those
again in his second motion. Id. at 32‐33; see State of Wisconsin v. Escalona‐
Naranjo, 517 N.W.2d 157, 185‐86 (Wis. 1994). The court went on, nevertheless,
to discuss his ineffectiveness claims as part of an exception to that procedural
bar. (Docket #12‐1 at 32‐34). Consequently, this Court will not conclude at the
screening stage that Garcia has procedurally defaulted.
The Court concludes its Rule 4 review by screening for patently
frivolous and speculative claims in Garcia’s federal habeas petition. Ray, 700
F.3d at 996 n.1. Garcia’s claims appear thin due to their layered nature.
Garcia argues that his post‐conviction counsel was ineffective for failing to
fully address the ineffectiveness of his trial counsel. (Docket #12 at 6‐9). He
then contends that if his various lawyers were not ineffective, this would
have eliminated evidence essential to his convictions. Id. at 10‐11. Despite
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how unlikely this chain of reasoning may be, it does not plainly appear that
Garcia’s claims are so frivolous or speculative as to merit dismissal at
screening. The court will direct the respondent to file an answer to Garcia’s
claims in the amended petition. The Court notes, however, that the
respondent has much more complete access to the underlying facts of this
case, and so he is free to use those facts to raise any procedural infirmities
which did not merit dismissal in this Order.
Accordingly,
IT IS 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.”
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 one hundred and 120 days from the date of this
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order if no brief is filed by petitioner.
c.
3.
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 the petitionerʹs filings will be electronically scanned and
entered on the docket upon receipt by the clerk, the petitioner need not mail
to counsel for the respondent copies of documents sent to the Court.
The petitioner is further warned that the failure to file a brief or
response as required by the above‐described schedule will result in the
dismissal of this action without prejudice and without further notice.
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
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District of Wisconsin, a copy of the second amended 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 10th day of May, 2017.
BY THE COURT:
____________________________________
J.P. Stadtmueller
U.S. District Judge
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