Garcia v. Boughton

Filing 20

ORDER signed by Judge J.P. Stadtmueller on 6/30/2017: GRANTING 16 Respondent's Motion to Dismiss; DENYING 12 Petitioner's Second Amended Petition for Writ of Habeas Corpus; DENYING Certificate of Appealability; and DISMISSING action with prejudice. (cc: all counsel, via mail to Victor Garcia at Wisconsin Secure Program Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VICTOR GARCIA,

v.

Petitioner,

Case No. 17-CV-421-JPS-JPS

GARY BOUGHTON,
Respondent.
1.

ORDER

INTRODUCTION
Petitioner Victor Garcia (“Garcia”) filed a petition for writ of habeas

corpus on March 22, 2017. (Docket #1). After going through several
iterations, the Court screened the current version of that petition on May
10, 2017. (Docket #13). The Court noted that Garcia’s claims were likely in
procedural default, but allowed him to proceed past screening. Id. On June
6, 2017, Respondent moved to dismiss Garcia’s petition on that ground.
(Docket #16). The motion is now fully briefed. (Response, Docket #18;
Reply, Docket #19). For the reasons explained below, the Court’s suspicions
have proven correct, and Garcia’s petition must be dismissed as
procedurally defaulted.
2.

BACKGROUND
The two opinions produced by the Wisconsin Court of Appeals in

Garcia’s state court litigation together provide the relevant background to
the instant case. On June 3, 2014, on direct appeal, the Court of Appeals
summarized Garcia’s crimes and arguments:
Victor Garcia appeals a judgment convicting him after
a jury trial of two counts of armed robbery with use of force,
one count of substantial battery with use of a dangerous

weapon, one count of armed burglary with a dangerous
weapon, and one count of felony bail jumping, all as a
repeater and all as a party to a crime except for bail jumping.
Victor Garcia also appeals an order denying his
postconviction motion. He argues that his trial lawyer
provided him with constitutionally ineffective assistance. We
affirm.
Victor Garcia, Fernando Garcia and Isaac Cortez were
charged with armed robbery and other counts for entering the
apartment of Scott Lynch and Mark Brown in the middle of
the night, robbing them and beating them. The State argued
at trial that Cortez was angry at Brown and wanted to hurt
him for alleged improprieties with Cortez’s girlfriend. The
State contended Cortez enlisted the help of Victor and
Fernando Garcia by telling them they could steal drugs and
money at the apartment. Victor Garcia’s defense at trial was
that he was not involved at all; his brother Fernando Garcia
committed the crimes with Cortez, but he was not present.
The jury convicted him of all of the charges against him.
Victor Garcia moved for postconviction relief, arguing
that he received constitutionally ineffective assistance from
his trial lawyer. He contended that his lawyer should have
moved to suppress a pair of Nike tennis shoes he was wearing
when he was arrested at his mother’s house. The shoes tied
Victor Garcia to the crime scene because they had paint
splatters on them that were consistent with paint found at the
victims’ apartment. Victor Garcia argued that the shoes
should not have been admitted because the police did not
have a warrant to enter his mother’s home where they
arrested him and his mother did not consent to the police
entering and searching her home. After an evidentiary
hearing, the circuit court denied the postconviction motion.
On appeal, Victor Garcia contends that his trial lawyer
provided constitutionally ineffective representation by failing
to move to suppress admission of the Nike shoes.
State of Wisconsin v. Garcia [Garcia I], 2012-AP-1685, 2014 WL 2462819, at *1
(Wis. Ct. App. 2014). The court affirmed Garcia’s conviction because any
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supposed error by his trial counsel was harmless; the evidence against him
was overwhelming. Id. at *4.
On April 27, 2016, the Court of Appeals addressed Garcia’s postconviction motion filed pursuant to Wis. Stat. § 974.06:
Victor Garcia appeals, pro se, an order denying his
motion for a new trial filed pursuant to Wis. Stat. § 974.06
(2013–14). Garcia argues that postconviction counsel was
ineffective in failing to raise claims that trial counsel was
constitutionally ineffective in several respects. He asserts that
he is, therefore, entitled to a new trial. Based upon our review
of the briefs and record, we conclude at conference that this
case is appropriate for summary disposition. See Wis. Stat.
Rule 809.21. We affirm the order.
...
On December 4, 2014, proceeding pro se, Garcia filed a
postconviction motion under Wis. Stat. § 974.06 alleging that,
in failing to raise clearly stronger issues in a previous
postconviction motion, postconviction counsel performed
deficiently and this prejudiced Garcia. Garcia alleged that,
because of this failure, his § 974.06 motion for a new trial
based on trial counsel’s ineffective assistance is not
procedurally barred. The circuit court permitted Garcia to
argue his motion. However, no testimony from
postconviction counsel or any other evidence was presented.
The circuit court denied the motion. Garcia appeals this
denial.
Garcia’s previous postconviction motion, filed by
counsel in 2012, argued that trial counsel should have sought
to suppress evidence tying Garcia to the crime. Because of this
failure, Garcia argued, he was entitled to a new trial. The
circuit court denied that motion after an evidentiary hearing,
and on appeal the ruling was affirmed. See [Garcia I]. Our
opinion concluded that any error with regard to the
suppression motion was harmless because, given the strength
of the State’s case, a rational jury would have found Garcia
guilty absent the error. See id., ¶¶ 4–14.

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Because Garcia could have raised these issues in his
2012 postconviction motion and appeal, the instant challenge
is barred unless he shows a sufficient reason for failing to raise
the issues at that time. See Wis. Stat. § 974.06(4); State v.
Escalona–Naranjo, 185 Wis. 2d 168, 185–86, 517 N.W.2d 157
(1994). Garcia’s motion alleges that ineffective assistance of
postconviction counsel is the reason for the failure to raise the
issues previously.
State of Wisconsin v. Garcia [Garcia II], 2015-AP-15, 2016 WL 8605414, at *1
(Wis. Ct. App. 2016). The court noted that to maintain his motion, Garcia
needed

to

“sufficiently

allege

postconviction

counsel’s

deficient

performance and allege that the deficient performance was prejudicial.” Id.
at *2. Garcia failed to appropriately allege deficient performance, and so his
Section 974.06 motion was procedurally inadequate. Id. at *2-3. The Court
of Appeals affirmed the trial court’s denial of Garcia’s motion without a
hearing. Id. at *3.
Garcia’s current habeas petition (now his second amended version)
presents three grounds for relief. First, he alleges that during his direct
appeal, the Wisconsin Court of Appeals violated his Sixth Amendment
right to effective assistance of post-conviction counsel by denying his
attempts to preserve various claims of his trial counsel’s ineffectiveness
(“Ground One”). (Docket #12 at 6-7). This ground rests on the Court of
Appeals’ denial of Garcia’s motions to remand his case to the trial court so
that he could add more argument to his direct appeal materials to include
the omitted claims. Id. Second, Garcia states that his post-conviction
counsel, Timothy Kiefer (“Kiefer”), afforded him ineffective assistance of
counsel by failing to include those claims of trial counsel’s ineffectiveness
that were the target of Garcia’s motions to remand (“Ground Two”). Id. at

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7-9. Finally, Garcia claims that he is actually innocent of his crimes
(“Ground Three”). Id. at 10-11.
3.

STANDARD OF REVIEW
The federal habeas corpus statute “permits a federal court to

entertain only those applications alleging that a person is in state custody
‘in violation of the Constitution or laws or treaties of the United States.’”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing 28 U.S.C. § 2254(a)). “As
amended by [the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”)], 28 U.S.C. § 2254 sets several limits on the power of a federal
court to grant an application for a writ of habeas corpus on behalf of a state
prisoner.” Id. As a result, the Court may grant a writ of habeas corpus only
if the state court’s decision with respect to that claim was: (1) “contrary to
. . . clearly established federal law, as determined by the Supreme Court of
the United States”; (2) “involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States”; or (3) “was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding.” 28 U.S.C.
§ 2254(d)(1–2); see also Conner v. McBride, 375 F.3d 643, 648-49 (7th Cir. 2004).
4.

ANALYSIS
None of Garcia’s claims survive to a review of their merits. Garcia

withdrew Ground Three in responding to the motion to dismiss. (Docket
#18 at 1). As to Grounds One and Two, he has procedurally defaulted. As
the Court noted in its screening order, procedural default generally bars
habeas relief. (Docket #13 at 3-4). The Seventh Circuit’s most recent
instruction on procedural default comes from Richardson:
Procedural defaults take several forms, but two are
paradigmatic. On the one hand, a claim might be
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procedurally defaulted when a petitioner fails to “fairly
present” his claim to the state courts, regardless of whether he
initially preserved it with an objection at the trial level. To
fairly present his federal claim, a petitioner must assert that
claim throughout at least one complete round of state-court
review, whether on direct appeal of his conviction or in postconviction proceedings. The complete round requirement
means that the petitioner must raise the issue at each and
every level in the state court system, including levels at which
review is discretionary rather than mandatory. On the other
hand, a claim might be procedurally defaulted through a
petitioner’s initial failure to preserve it with an objection, even
if the petitioner later does attempt to present it for review.
“[W]hen a state court refuses to reach the merits of a
petitioner’s federal claims because they were not raised in
accord with the state’s procedural rules (i.e., because the
petitioner failed to contemporaneously object), that decision
rests on independent and adequate state procedural
grounds.” [Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir.
2010).]
Richardson v. Lemke, 745 F.3d 258, 268-69 (7th Cir. 2014) (citations omitted).
As to the first iteration, “fair presentment” requires that the
petitioner fully present his federal claims to the state courts, giving the state
courts a meaningful opportunity to pass on them. Anderson v. Benik, 471
F.3d 811, 814 (7th Cir. 2006). The factual and legal substance of what the
petitioner presents to the federal and state courts must remain similar. Id. If
a claim is constitutional in nature, the state court must be apprised of this.
Id. To determine whether a claim is fairly presented, courts look to “1)
whether the petitioner relied on federal cases that engage in a constitutional
analysis; 2) whether the petitioner relied on state cases which apply a
constitutional analysis to similar facts; 3) whether the petitioner framed the
claim in terms so particular as to call to mind a specific constitutional right;

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and 4) whether the petitioner alleged a pattern of facts that is well within
the mainstream of constitutional litigation.” Id. (quotation omitted).
This iteration defeats Ground One. As noted above, this ground rests
on Garcia’s remand motions. At no point in his appellate briefs filed in
Garcia I, either before the Court of Appeals or the Wisconsin Supreme
Court, did Garcia cite federal precedent holding that the Sixth Amendment
demanded a remand in those circumstances. (Docket #17-3 at 32; Docket
#17-5; Docket #17-6 at 18-23). Instead, Garcia presented the issue to the
Wisconsin Supreme Court as a question of interpreting the state statute
governing the remand motions, not a constitutional violation. (Docket #176 at 18-23). Ground One was not arguably presented in any form to either
court in Garcia II. See (Docket #17-7 at 1-34; Docket #17-9; Docket #17-10 at
1-17). By failing to present Ground One to the Wisconsin courts for fair
consideration, Garcia has defaulted on the claim.
Garcia’s argument to the contrary is unavailing. He contends that the
constitutional issue was raised because he told the Wisconsin courts that he
sought remand to raise additional claims of ineffective assistance pursuant
to the Sixth Amendment. This misconstrues Ground One. Ground One is
not a claim for Garcia’s counsels’ ineffectiveness at any stage, but is instead
a claim that the Court of Appeals itself violated his right to counsel. Garcia
did not argue to the Wisconsin courts, or cite any cases supporting an
argument, that his Sixth Amendment right to counsel could be violated by
the Court of Appeals with its denial of his motions to remand. In responding
to the motion to dismiss, Garcia still fails to cite any cases establishing such
a rule. See (Docket #18 at 4-9). His only conceivably relevant citation is to
Watkins, which holds that a court “‘must indulge every reasonable
presumption against the loss of constitutional rights.’” United States v.
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Watkins, 983 F.2d 1413, 1418 (7th Cir. 1993) (quoting Illinois v. Allen, 397 U.S.
337, 343 (1970)). Raising this generic principle does not satisfy the “fair
presentment” test described by Anderson. More importantly, Garcia never
cited Watkins to the Wisconsin courts. See (Docket #17-3 at 32; Docket #17-5;
Docket #17-6 at 18-23).1
As to the second form of procedural default, “[w]hen the last state
court to issue an opinion on a petitioner’s federal claim has resolved that
claim on an adequate and independent state ground, federal habeas review
of the claim is foreclosed.” Miranda v. Leibach, 394 F.3d 984, 991 (7th Cir.
2005). This generally arises when “the petitioner failed to comply with a
state procedural rule and the state court relied on that procedural default
to refrain from reaching the merits of the federal claim.” Id. at 991-92. A
state ground is “independent” when it is actually relied on by the state court
in deciding the claim, and is “adequate” when the ground is applied “in a
consistent and principled way.” Id. at 992; Promotor v. Pollard, 628 F.3d 878,
885 (7th Cir. 2010).
Ground Two does not survive this form of procedural default.
Wisconsin has established a rule that permits circuit courts to deny a
Section 974.06 post-conviction motion when “the motion does not raise
facts sufficient to entitle the movant to relief, or presents only conclusory
allegations, or if the record conclusively demonstrates that the defendant is

In his brief to the Wisconsin Supreme Court, Garcia cited only one case in
his argument addressing the remand issue, Rothering v. McCaughtry, 556 N.W.2d
136 (Wis. Ct. App. 1996). (Docket #17-6 at 21). Rothering stands for the proposition
that a post-conviction motion can be used to address ineffectiveness on the part of
appellate counsel, even though such a claim would clearly not have been made in
the direct appeal itself (and thereby barred in normal circumstances). Id. at 139-40.
This citation was no better than any of Garcia’s other arguments at fairly
presenting Ground One to the Wisconsin Supreme Court.
1

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not entitled to relief[.]” State of Wisconsin v. Allen, 682 N.W.2d 433, 576 (Wis.
2004). Wisconsin has extended the Allen rule to claims of ineffectiveness by
appellate counsel. State of Wisconsin v. Romero-Georgana, 849 N.W.2d 668,
677-78 (Wis. 2014). The Seventh Circuit holds that the Allen rule “is a wellrooted procedural requirement in Wisconsin and is therefore adequate.” Lee
v. Foster, 750 F.3d 687, 694 (7th Cir. 2014). The Lee court also found the Allen
rule to be “independent” in that case because the Court of Appeals
expressly relied on it. Id. at 693. Ground Two was, of course, not presented
in Garcia I. Though it was raised in Garcia’s Section 974.06 post-conviction
motion, the Court of Appeals cited the Allen rule in denying relief. Garcia II,
2016 WL 8605414, at *2. It held that Garcia’s conclusory allegations
regarding Kiefer’s deficient performance did not pass the procedural bar
set by Allen. Id. at *2-3. Ground Two, then, is barred because the Wisconsin
courts rested their rejection of that ground on independent and adequate
state law grounds.
Garcia’s attempts to avoid this result are meritless. First, he argues
that the Court should look to the circuit court’s opinion on his Section
974.06 motion because the Court of Appeals summarily affirmed that
opinion. While it is true that the case was “appropriate for summary
disposition,” Garcia II, 2016 WL 8605414, at *1, the Court of Appeals in fact
issued its own substantial opinion on the matter, see generally id. That
opinion is what this Court is bound to review. Woolley v. Rednour, 702 F.3d
411, 421 (7th Cir. 2012) (“When a state collateral review system issues
multiple decisions, we typically consider the last reasoned opinion on the
claim[.]”) (quotation omitted).
Second, Garcia maintains that the Court of Appeals did not expressly
rely on the Allen rule. To prove ineffectiveness on the part of appellate
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counsel, a defendant must show that the claims appellate counsel declined
to include in the appeal were both “obvious” and “clearly stronger” than
the ones which were pressed. Makiel v. Butler, 782 F.3d 882, 898 (7th Cir.
2015). Garcia believes that rather than merely applying Allen, the Court of
Appeals actually opined on the merits of whether his alternative claims
were “clearly stronger.” Garcia is incorrect. The Court of Appeals
addressed only the “threshold question” of whether Garcia’s allegations
were sufficient to survive the Allen rule. Garcia II, 2016 WL 8605414, at *3.
In doing so, the court necessarily referenced the elements of an
ineffectiveness claim, including the “clearly stronger” consideration. Id. It
did not, however, decide whether any of Garcia’s claims met that standard,
but instead found that Garcia’s allegations lacked the requisite specificity.
Id.
Garcia’s final contention is that the Court of Appeals got it wrong—
he did adequately allege a claim of appellate counsel’s ineffectiveness. No
matter its merits, the Court cannot follow him on this path. As noted by Lee,
“review of the adequacy of a state ground is limited to whether it is a firmly
established and regularly followed state practice at the time it is applied,
not whether the review by the state court was proper on the merits.” Lee,
750 F.3d at 694.
Finally, Garcia’s procedural defaults may have been excused if he
could establish equitable grounds therefore. These include proving “[1]
cause for and prejudice stemming from that default, or, . . . [2] that the
denial of relief will result in a miscarriage of justice[.]” Blackmon v. Williams,
823 F.3d 1088, 1099 (7th Cir. 2016). Despite these grounds being raised in
Respondent’s opening brief, (Docket #17 at 11-13), Garcia makes no attempt

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to raise them in his response, see generally (Docket #18). The Court will not
do so for him.
5.

CONCLUSION
For the reasons stated above, Respondent’s motion to dismiss must

be granted. Still, under Rule 11(a) of the Rules Governing Section 2255
Cases, “the district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” To obtain a certificate
of appealability under 28 U.S.C. § 2253(c)(2), Garcia must make a
“substantial showing of the denial of a constitutional right” by establishing
that “reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). Further, when the Court has denied relief on procedural grounds,
the petitioner must show that jurists of reason would find it debatable both
that the “petition states a valid claim of the denial of a constitutional right”
and that “the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). As the Court discussed above, reasonable
jurists would not debate whether the petition should have been resolved in
a different manner. As a consequence, the Court is further compelled to
deny a certificate of appealability as to Garcia’s petition.
Finally, the Court closes with some information about the actions
that Garcia may take if he wishes to challenge the Court’s resolution of this
case. This order and the judgment to follow are final. A dissatisfied party
may appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within 30 days of the entry
of judgment. See Fed. R. App. P. 3, 4. This Court may extend this deadline
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if a party timely requests an extension and shows good cause or excusable
neglect for not being able to meet the 30-day deadline. See Fed. R. App. P.
4(a)(5)(A). Moreover, under certain circumstances, a party may ask this
Court to alter or amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of Civil Procedure
60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed
within 28 days of the entry of judgment. The Court cannot extend this
deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. The court cannot extend this
deadline. Id. A party is expected to closely review all applicable rules and
determine what, if any, further action is appropriate in a case.
Accordingly,
IT IS ORDERED that Respondent Gary Boughton’s motion to
dismiss (Docket #16) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Petitioner Victor Garcia’s petition
for a writ of habeas corpus (Docket #12) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to
the petitioner Victor Garcia’s petition be and the same is hereby DENIED;
and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of Court is directed to enter judgment accordingly.

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Dated at Milwaukee, Wisconsin, this 30th day of June, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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