Salinas v. Boughton

Filing 6

SCREENING ORDER signed by Judge J.P. Stadtmueller on 3/20/2018: DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; DISMISSING CASE without prejudice for Petitioner's failure to exhaust his state remedies; and DENYING Certificate of Appealability. See Order. (cc: all counsel, via mail to Luis C. Salinas at Wisconsin Secure Program Facility)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LUIS C. SALINAS,
Petitioner,

Case No. 17-CV-503-JPS-JPS

v.
GARY BOUGHTON,

ORDER

Respondent.
On April 6, 2017, Petitioner Luis C. Salinas (“Salinas”) filed this
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). After proceeding to trial in Brown County Circuit Court,
Salinas was convicted of multiple counts of child sexual assault and
intimidating victims. Id. at 2. On May 14, 2012, he was sentenced to seventy
years’ imprisonment. Id. at 2.
Salinas appealed on the ground that, under Wisconsin law, the
sexual assault charges should not have been tried together with those
concerning victim intimidation. Wisconsin v. Salinas, 865 N.W.2d 884, 2015
WL 1781421, at *1 (Wis. Ct. App. Apr. 21, 2015); see also Wis. Stat. § 971.12.
The Court of Appeals agreed with Salinas and reversed his convictions,
ordering a new trial on each set of charges. Id. at *8. The state then appealed.
The Wisconsin Supreme Court countermanded the Court of Appeals,
finding that joinder of the charges for trial was not improper. Wisconsin v.
Salinas, 879 N.W.2d 609, 624 (Wis. 2016). Salinas’ convictions were thereby
affirmed as of the date of that opinion, May 26, 2016. Salinas did not file a

petition for a writ of certiorari with the U.S. Supreme Court. (Docket #1 at
4).
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
Salinas’ 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 Salinas’ petition is timely. As noted above, Salinas’
direct appeal concluded on May 26, 2016. He did not file a petition for
certiorari to the United States Supreme Court. Because the petition in this

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case was filed on April 6, 2017, it satisfies the time constraints of Section
2244(d).
The court continues its Rule 4 review by examining Salinas’ 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
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.”).
If a federal habeas petition has even a single unexhausted claim, the
district court may be required to dismiss the entire petition and leave the
petitioner with the choice of either returning to state court to exhaust the
claim or amending or resubmitting the petition to present only exhausted
claims. See Rose v. Lundy, 455 U.S. 509, 510 (1982). Under Rhines v. Weber,
544 U.S. 269, 278 (2005), the Court should grant a stay to allow the petitioner
to return to state court to exhaust his claims when “the petitioner had good
cause for his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.” See also Purvis v. United States, 662
F.3d 939, 944 (7th Cir. 2011) (applying Rhines to a mixed petition brought
under 28 U.S.C. § 2255). The Court should also allow the petitioner to
amend his petition to remove any unexhausted claims before dismissing
the petition. Rhines, 544 U.S. at 278. A petitioner exhausts his constitutional
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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)); Perruquet v. Briley, 390 F.3d 505, 513 (7th
Cir. 2004)). 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, Salinas presents a single ground for relief—that he was
“denied Due Process and a fair trial when unrelated charges . . . were
erroneously and prejudicially joined together at [the] time of trial.” (Docket
#1 at 6). Petitioner claims that not only did the joinder violate state law, but
also his federal constitutional rights. Id. at 6-8. Unfortunately for Salinas, he
never breathed a word about federal constitutional concerns to the
Wisconsin courts.1 All of his arguments there were directed at the
application of Wisconsin’s criminal joinder statute, Wis. Stat. § 971.12. See
Salinas, 2015 WL 1781421, Appellant’s Brief at 29-35 and Reply Brief at 2-9;
Salinas, 879 N.W.2d 609, Response Brief at 16-37.2 The decisions of the
Wisconsin Court of Appeals and Supreme Court are likewise silent on any
due process (or other federal) concerns. Salinas, 2015 WL 1781421 at *4-8;
Salinas, 879 N.W.2d at 618-24.

The only claim this Court could even theoretically hear is the federal one;
Salinas’ concern about improperly applied state law is not a matter for federal
habeas review. Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[W]e have repeatedly held
that federal habeas corpus relief does not lie for errors of state law. It is not the
province of a federal habeas court to reexamine state-court determinations on
state-law questions.”) (quotations, citations, and alterations omitted).
1

Salinas’ briefs were not attached to his petition. They may nevertheless be
retrieved by viewing the docket sheet for Wisconsin Court of Appeals case number
2013-AP-2686-CR at https://wscca.wicourts.gov.
2

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Salinas has thus failed to exhaust his remedies in state court. Salinas
did not give the Wisconsin courts a full and fair opportunity to pass on his
federal claim. Anderson v. Benik, 471 F.3d 811, 814-15 (7th Cir. 2006). This
action must, therefore, be dismissed “without prejudice so that the
petitioner may return to state court in order to litigate the claim.” Perruquet,
390 F.3d at 514.3
Under Rule 11(a) of the Rules Governing Section 2254 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), Salinas 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). As
the Court discussed above, no reasonable jurists could debate whether
Salinas had exhausted his remedies in Wisconsin state court. As a
consequence, the Court is compelled to deny a certificate of appealability
as to Salinas’ petition.
Finally, the Court closes with some information about the actions
that Salinas 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

Salinas’ failure to raise federal constitutional concerns in his initial appeal
may place him in procedural default, Perruquet, 390 F.3d at 514-16, but that concern
will be tabled until Salinas returns to this Court.
3

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of judgment. See Fed. R. App. P. 3, 4. This Court may extend this deadline
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. See 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 Petitioner’s petition for a writ of habeas corpus
(Docket #1) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED without prejudice; and
IT IS FURTHER ORDERED that a certificate of appealability be and
the same is hereby DENIED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 20th day of March, 2018.
BY THE COURT:

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

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