Garcia v. Boughton
Filing
6
ORDER signed by Judge J.P. Stadtmueller on 4/10/2017 ORDERING that Petitioner re-file his petition under 28 U.S.C. § 2254 for a writ of habeas corpus no later than 5/1/2017 or this action will be dismissed without further notice. (Attachments: # 1 Form Habeas 2254 Petition) (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.
Case No. 17-CV-421-JPS
GARY BOUGHTON,
Respondent.
ORDER
On March 22, 2017, Victor Garcia (“Garcia”) filed a petition pursuant
to 28 U.S.C. § 2254, asserting that his state court conviction and sentence were
imposed in violation of the Constitution. (Docket #1). Garcia was convicted
of various charges related to “a violent home invasion by Garcia and several
others in which the victims were robbed and beaten.” State of Wisconsin v.
Victor Garcia, No. 2015-AP-15 (Wis. App. Apr. 27, 2016) (Docket #1-1 at 15).
Garcia was sentenced to sixteen years imprisonment, and is currently
confined to the Wisconsin Secure Program Facility.
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).
Generally, 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. However, in this case, the
Court finds it prudent to ask Garcia to resubmit his petition.
Most of the information that the Court has been able to gather in this
case is derived from the Wisconsin public record system and the attachments
to the petition. Contrary to the stated preference in Rule 2 of the Rules
Governing § 2254 Cases in the United States District Courts, Garcia did not
submit his petition on the standard form for habeas actions. See Rule 2(d)
(“Standard Form. The petition must substantially follow either the form
appended to these rules or a form prescribed by a local district-court rule.”).
In failing to “substantially follow” the standard form, Garcia has failed to
answer various important questions relevant to the screening process. See
generally (Docket #1). Instead of a standard petition, Garcia’s submission is
more like a brief in support thereof, which comes too early in this litigation.
Given the unclear nature of this petition, the Court will order Garcia
to re-file his petition on or before May 1, 2017. To this end, the Court will
provide Garcia with the standard habeas petition form without charge.
Garcia is reminded that his petition must: (1) specify all the grounds for relief
available to the petitioner; (2) state the facts supporting each ground; (3) state
the relief requested; (4) be printed, typewritten, or legibly handwritten; and
(5) be signed under penalty of perjury by the petitioner or by a person
authorized to sign it for the petitioner under 28 U.S.C. § 2242. See Rule 2(c) of
the Rules Governing § 2254 Cases in the United States District Courts. Garcia
should also take care to answer each question in the petition to the best of his
ability. He should not simply rely on or refer to attachments to the petition,
because the Court will not accept such a tactic in lieu of a properly completed
petition. If Garcia does not submit a properly completed habeas petition form
by the above-stated date, this action will be dismissed without further notice.
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Accordingly,
IT IS ORDERED that Garcia must re-file his petition under 28 U.S.C.
§ 2254 for a writ of habeas corpus no later than May 1, 2017; to that end, the
Court will send the petitioner a blank standard petition to guide Garcia’s
submission.
Dated at Milwaukee, Wisconsin, this 10th day of April, 2017.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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