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)

PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254
BY A PERSON IN STATE CUSTODY
INSTRUCTIONS---READ CAREFULLY
1.

Use This Form – If you are a person currently serving or will serve a sentence entered by a state court
and you are asking for relief from the conviction or the sentence.
Do Not Use This Form – *IF YOU ARE CHALLENGING YOUR FEDERAL CONVICTION OR
SENTENCE. INSTEAD, USE THE FORM ENTITLED “MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR
CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY.” IF 28
U.S.C. § 2255 IS INADEQUATE OR INEFFECTIVE TO TEST THE LEGALITY OF YOUR DETENTION,
USE THE FORM ENTITLED “APPLICATION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28
U.S.C. § 2241 BY A PERSON IN CUSTODY.”
*IF YOU ARE A PRETRIAL DETAINEE CHALLENGING YOUR PRE-CONVICTION CUSTODY, A
FEDERAL PRISONER CHALLENGING THE EXECUTION OF YOUR SENTENCE OR AN ACTION
TAKEN BY THE BUREAU OF PRISONS, OR A PERSON IN CUSTODY CHALLENGING AN
IMMIGRATION-RELATED ORDER (OTHER THAN A REMOVAL ORDER), OR IN OTHER
SITUATIONS WHERE RELIEF IS NOT AVAILABLE UNDER 28 U.S.C. § 2254 OR 28 U.S.C. § 2255,
OR IF 28 U.S.C. § 2255 IS INADEQUATE OR INEFFECTIVE TO TEST THE LEGALITY OF YOUR
DETENTION, USE THE FORM ENTITLED “APPLICATION FOR WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241 BY A PERSON IN CUSTODY.”

2.

Readable – You may either type or neatly handwrite the information on the following form. It must be
readable.

3.

Signed Under Penalty of Perjury – To submit your petition, it must be signed. Your signature indicates
that the petition is signed "under penalty of perjury.” This means that any false statement of a material
fact presented in your petition may serve as a basis for prosecution and conviction for perjury. Your
signature does not have to be witnessed by a notary public. The petition may also be signed by a
person authorized to sign it for you, such as an attorney.

4.

Copies and Proper Court – When the petition is fully completed, you must mail the original to: Clerk
of Court, United States District Court for the Eastern District of Wisconsin, 517 East Wisconsin Avenue,
Milwaukee, WI 53202.

5.

All Grounds – You must include all grounds for relief in this petition and the facts supporting each
ground for relief. If you fail to do so, you may be prevented from presenting additional grounds at a later
date.

6.

Legal Citations and Arguments – You must answer all applicable questions. However, you should
not cite to legal authorities (i.e., case law or statutes) on this form. If you submit a supporting
memorandum in addition to this form, it must not exceed fifteen (15) pages. Excess pages will not be
considered.

7.

Fee – You must either (a) pay the filing fee of $5.00 or (b) if you do not have the $5.00, you may request
permission to proceed in forma pauperis (as a poor person), in which event you must complete and sign
the petition and affidavit attached to this petition and have an authorized officer at the penal institution
complete and sign the attached certificate. You must also have an authorized officer attach a printout
of your prison trust account statement activity for the six months prior to the filing of your petition.

8.

Dodge Correctional Institution, Green Bay Correctional Institution, Waupun Correctional
Institution, and Wisconsin Secure Program Facility Inmates – You must submit all correspondence
and case filings, including the habeas petition and any in forma pauperis petition, to institution staff for
filing pursuant to the Prisoner E-Filing Program.

§ 2254

-i-

April 2015

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

, Petitioner,
Full Name (under which you were convicted)

Prisoner Number

Docket No.
(to be supplied by Clerk)
Place of Confinement

vs.

,

Respondent.

Authorized Person Having Custody of Petitioner

PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254
BY A PERSON IN STATE CUSTODY

Caution: THIS IS NOT THE FORM TO BE USED, IF YOU CLAIM THAT YOUR FEDERAL SENTENCE
OR CONVICTION IS UNLAWFUL, OR IF YOU ARE A PRETRIAL DETAINEE CHALLENGING YOUR
PRECONVICTION CUSTODY, A FEDERAL PRISONER CHALLENGING THE EXECUTION OF YOUR
SENTENCE OR AN ACTION TAKEN BY THE BUREAU OF PRISONS, OR A PERSON IN CUSTODY
CHALLENGING AN IMMIGRATION-RELATED ORDER.

§ 2254

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June 2013

I.

SUBJECT OF THIS PETITION
A. Name and location of the state court that entered the judgment of conviction which you are
challenging

B. Criminal docket or case number
C. Date of the judgment of conviction
D. Date of sentencing
E. Length of sentence
F. In this case, were you convicted on more than one count or of more than one crime?
G Yes

G No

G. Identify all crimes of which you were convicted and sentenced in this case

H. What was your plea? (Check one)
G Not guilty

G Guilty

G Insanity plea

G Nolo contendere (no contest)

If you entered a guilty plea to one count or charge and a not guilty plea to another count or charge,
what did you plead guilty to and what did you plead not guilty to?

I.

If you went to trial, what kind of trial did you have? (Check one)
G Jury

§ 2254

G Judge only

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June 2013

SUBJECT OF THIS PETITION - continued
J. Did you testify at a pretrial hearing, trial, or a post-trial hearing?
G Yes

G No

If yes, state the type(s) of hearing or proceeding

II.

DIRECT STATE APPEAL OF CONVICTION
A. Did you appeal from the judgment of conviction?
G Yes

G No

If yes, attach the decision(s) that resolved your appeal and answer the following questions:
1. Date of filing appeal
2. Grounds raised

3. Result
4. Date
B. Did you seek further review by the highest state court?
G Yes

G No

If yes, attach the decision(s) that resolved your petition for review and answer the following questions:
1. Date of filing of petition for review
2. Grounds raised

3. Result
4. Date

§ 2254

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June 2013

DIRECT STATE APPEAL OF CONVICTION - continued
C. Did you file a petition for certiorari in the United States Supreme Court?
G Yes

G No

If yes, attach the decision(s) that resolved your petition for certiorari and answer the following
questions:
1. Date of filing petition for certiorari
2. Grounds raised

3. Result
4. Date
III. STATE POST-CONVICTION RELIEF OTHER THAN DIRECT APPEAL
A. Other than the appeals listed above in Section II, have you previously filed any other state petitions,
applications, or motions concerning this state judgment of conviction?
G Yes

G No

If yes, attach the decision(s) that resolved your application for state post-conviction relief and answer
the following questions:
1. Name of court
2. Docket or case number
3. Date of filing
4. Type of petition, application, or motion filed
5. Grounds raised

6. Did you receive a hearing where evidence was given on your petition, application, or motion?
G Yes

G No

7. Result

§ 2254

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STATE POST-CONVICTION RELIEF OTHER THAN DIRECT APPEAL- continued
8. Date
9. Did you appeal to the highest state court having jurisdiction over the action taken on your first
state petition, application, or motion?
G Yes

G No

B. If you filed a second petition, application, or motion, attach the decision and answer the following
questions:
1. Name of court
2. Docket or case number
3. Date of filing
4. Type of petition, application, or motion filed
5. Grounds raised

6. Did you receive a hearing where evidence was given on your petition, application, or motion?
G Yes

G No

7. Result
8. Date
9. Did you appeal to the highest state court having jurisdiction over the action taken on your second
state petition, application, or motion?
G Yes

G No

C. If you filed a third petition, application, or motion, attach the decision and answer the following
questions:
1. Name of court
2. Docket or case number
3. Date of filing

§ 2254

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June 2013

STATE POST-CONVICTION RELIEF OTHER THAN DIRECT APPEAL- continued
4. Type of petition, application or motion filed
5. Grounds raised

6. Did you receive a hearing where evidence was given on your petition, application, or motion?
G Yes

G No

7. Result
8. Date
9. Did you appeal to the highest state court having jurisdiction over the action taken on your third
state petition, application, or motion?
G Yes

G No

IV. GROUNDS FOR RELIEF
For this petition, state every ground supporting your claim that you are being held in violation of the
Constitution, laws, or treaties of the United States. If you fail to set forth all the grounds in this petition,
you may be barred from presenting additional grounds at a later date.
Attach additional pages if you have more than four grounds. State the facts supporting each ground.
CAUTION: To proceed in the federal court, you must ordinarily first exhaust (use up) your available statecourt remedies on each ground on which you request action by the federal court.

Ground One

Supporting FACTS (Briefly summarize the facts without citing cases or law.)

§ 2254

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June 2013

GROUNDS FOR RELIEF - continued

If you did not exhaust your state remedies on Ground One, explain why.

Ground Two

Supporting FACTS (Briefly summarize the facts without citing cases or law.)

§ 2254

-7-

June 2013

GROUNDS FOR RELIEF - continued

If you did not exhaust your state remedies on Ground Two, explain why.

Ground Three

Supporting FACTS (Briefly summarize the facts without citing cases or law.)

If you did not exhaust your state remedies on Ground Three, explain why.

§ 2254

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GROUNDS FOR RELIEF - continued
Ground Four

Supporting FACTS (Briefly summarize the facts without citing cases or law.)

If you did not exhaust your state remedies on Ground Four, explain why.

V.

PRIOR FEDERAL CHALLENGES
A. Have you previously filed any type of petition, application, or motion in a federal court regarding the
state conviction that you are challenging in this petition?
G Yes

G No

If yes, attach the decision(s) that resolved your prior federal court challenge and answer the following
questions:
1. Name of court
§ 2254

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June 2013

PRIOR FEDERAL CHALLENGES - continued
2. Docket or case number
3. Date of filing
4. Type of petition, application, or motion filed
5. Grounds raised

6. Did you receive a hearing where evidence was given on your petition, application, or motion?
G Yes

G No

7. Result
8. Date
9. Did you appeal the action taken on your first federal petition, application, or motion to a federal
court of appeals?
G Yes

G No

If yes, attach the decision(s) that resolved your appeal and answer the following questions:
a. Name of court
b. Docket or case number
c. Date of filing
d. Type of petition, application, or motion filed
e. Grounds raised

§ 2254

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June 2013

PRIOR FEDERAL CHALLENGES - continued

f.

Result

g. Date
B. Did you file a petition for certiorari in the United States Supreme Court?
G Yes

G No

If yes, attach the decision(s) that resolved your petition for certiorari and answer the following
questions:
1. Date of filing petition for certiorari
2. Grounds raised

3. Result
4. Date

VI. REPRESENTATION
A. Give the name and address of each attorney who represented you in the following:
1. At preliminary hearing

2. At arraignment and plea hearing

3. At trial

4. At sentencing

5. On direct appeal

§ 2254

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REPRESENTATION - continued
6. In any state post-conviction proceeding

7. On appeal from any ruling against you in a state post-conviction proceeding

VII. REQUEST FOR RELIEF
State exactly what you want the court to do for you.

VIII. DECLARATION UNDER PENALTY OF PERJURY
I, the undersigned, hereby declare under penalty of perjury that the foregoing information is true and
correct.

Signed this

day of

, 20

.

Signature of Petitioner

(Signature of lawyer, if any)

If you are signing the petition and are not the petitioner, state your relationship to the petitioner and explain
why the petitioner is not signing this petition.

§ 2254

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June 2013

IX. CERTIFICATE OF INMATE MAILING - Optional
If you deposit your petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in your
prison/institutional/jail mailing system and attach first-class postage pre-paid, and complete and sign this
statement, you will establish the filing date as the date of deposit in that mailing system.

I, the undersigned, hereby declare under penalty of perjury that I placed this petition for a writ of habeas
corpus under 28 U.S.C. § 2254 in the prison/institutional/jail mailing system with prepaid, first-class
postage on

.
(month, day, year)

Signed this

day of

, 20

Signature of Petitioner

§ 2254

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June 2013

.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

__________________________________________
Plaintiff or Petitioner (full name)
Case No. __________________________
(to be supplied by Clerk)

v.

__________________________________________
Defendant(s) or Respondent(s) (full name)

PRISONER’S PETITION AND AFFIDAVIT TO PROCEED
WITHOUT PREPAYMENT OF FEES AND/OR COSTS

THIS FORM IS FOR PRISONERS ONLY.
The cost of filing nearly every civil action is $400.00. This includes the $350.00 statutory filing fee and a $50.00
administrative fee. If you cannot afford this $400.00 fee you may ask permission to proceed without the
prepayment of fees and/or costs by completing this form, the attached authorization, and providing the court
with a certified copy of your institutional trust account statement for the past six months. The court will review
your trust account statement and calculate the amount you must pay for your case to proceed. After you pay this
initial partial filing fee, the court will review your complaint to determine whether it is sufficient to proceed.
Every month, the prison will automatically deduct 20% of your monthly income from your institutional trust
account. The money will be forwarded to the court to be paid towards the remainder of the $350.00 statutory
filing fee. These automatic deductions will continue until the $350.00 statutory filing fee is paid in full.
Prisoners granted permission to proceed without the prepayment of fees and/or costs do not have to pay the
$50.00 administrative fee.
The filing fee for a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 or 2254 is $5.00. If you
are unable to pay this $5.00 filing fee, complete this form, the attached authorization, and provide the court
with a certified copy of your institutional trust account statement for the past six months. If the court finds that
you are unable to pay the $5.00 filing fee, the court will grant your petition to proceed without prepayment of
fees and/or costs and you will not have to prepay the $5.00 fee.
If you are filing a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255, there is no
filing fee. However, you may want to complete and return this form and the attached authorization, and provide
the court with a certified copy of your institutional trust account statement for the past six months if you believe
you will be unable to pay other costs associated with your case such as the cost of obtaining transcripts.

Prisoner Petition and Affidavit to Proceed Without Prepayment of Fees and/or Costs

Page 1 of 3

June 2013

1. What type of case are you filing? ___________________________________________________________
(e.g. civil rights, petition for a writ of habeas corpus, etc.)

2. Are you currently married?

Yes

No

3. If you and/or your spouse have any of the following assets, provide details:
Type of Asset
Bank account (checking, savings, money market etc.)
Retirement account (IRA, 401(k), 403(b), pension, etc.)
Investments (certificate of deposit, stocks, securities, bonds,
mutual funds, exchange traded funds, etc.)
Real estate (house, apartment building, condo, lots, etc.)
Other valuable assets (motor vehicles, boats, jewelry, art
work, collectibles, etc.)

Approximate Value
$
$
$
$
$

Are there any other circumstances that you would like the court to consider when reviewing your request
to proceed without prepayment of costs and/or fees?

I, _____________________________________, declare that I am the plaintiff or petitioner in the above-named
action. In support of my request to proceed in forma pauperis, I declare that I am unable to pay the fees and/or
costs of these proceedings and that I believe I am entitled to the relief sought in the present complaint, petition,
or motion. I understand that a false statement may result in a dismissal of my claims. I answer the following
questions fully, truthfully, and under penalty of perjury. 28 U.S.C. § 1746; 18 U.S.C. § 1621.

Institutional Identification Number: _______________________

Signature: ____________________________________________

Date: ___________________

This form does not need to be notarized.

Prisoner Petition and Affidavit to Proceed Without Prepayment of Fees and/or Costs

Page 2 of 3

June 2013

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

__________________________________________
Plaintiff or Petitioner (full name)
Case No. __________________________
(to be supplied by Clerk)

v.

__________________________________________
Defendant(s) or Respondent(s) (full name)

AUTHORIZATION FOR RELEASE OF INSTITUTIONAL ACCOUNT INFORMATION
AND PAYMENT OF THE FILING FEE

I, ___________________________________________,
(your name)

___________________________________,
(institutional identification number)

hereby authorize the court to obtain from the agency having custody of me, information about my institutional
trust account, including balances, deposits, and withdrawals over the prior six months.
I further authorize the agency or facility having custody of me to continue to disclose information about my
institutional trust account, including balances, deposits, and withdrawals to the court until the filing fee in this
matter is paid in full.
I further authorize the agency or facility having custody of me to withdraw funds from my institutional trust
account in accordance with 28 U.S.C. § 1915 and to forward these funds to the court for payment of any filing
fee.

Signature: ____________________________________________

Date: ___________________

This form does not need to be notarized.

Prisoner Petition and Affidavit to Proceed Without Prepayment of Fees and/or Costs

Page 3 of 3

June 2013