United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
August 16, 2016, Ricardo Perez Belmares
(“Belmares”) 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.
After pleading guilty in Dane County Circuit Court, Belmares
was convicted of disorderly conduct and was sentenced to 10
days in jail and a year of probation. Belmares is currently
confined to the Dodge County Detention Facility.
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.
face of Belmares's complaint, an immediate problem
becomes clear: Belmares has not sought state court review on
any of the claims he purports to raise in his petition.
(Docket #1 at 2-4). Under 28 U.S.C. § 2254(b)(1), habeas
petitioners are required to exhaust their claims in the state
courts, “meaning that there is no remaining state court
with jurisdiction” to hear the claims (i.e.,
that the petitioner presented his claim to the state's
highest court before including it in a habeas petition).
Johnson v. Foster, 786 F.3d 501, 504 (7th Cir.
2015); see also Arrieta v. Battaglia, 461 F.3d 861,
862 (7th Cir. 2006) (citing O'Sullivan v.
Boerckel, 526 U.S. 838 (1999)). 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.”).
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 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).
Mr. Belmares does not allege any attempt to exhaust his
purported claims. (Docket #1 at 2-4). In fact, it appears
that Mr. Belmares was only just convicted of disorderly
conduct in “March or April” of 2016. (Docket #1
at 2). Indeed, public records confirm that Mr. Belmares's
judgment of conviction was entered on April 1, 2016. Thus,
because Wisconsin state courts have not had a “full and
fair opportunity” to review Mr. Belmares's claims,
the Court concludes that Mr. Belmares's petition must be
dismissed for failure to exhaust state remedies.
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), Mr. Belmares 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 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, no
reasonable jurists could debate whether Mr. Mr. Belmares
exhausted his claims in state court. As a consequence, the
Court is compelled to deny a certificate of appealability as
to Mr. Belmares's petition.
the Court closes with some information about the actions that
Mr. Belmares 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 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 Federal Rule of Civil Procedure 6(b)(2). A party is
expected to closely review all applicable rules and determine
what, if any, further action is appropriate in a case.
IT IS ORDERED that the instant petition for a writ of habeas
corpus (Docket #1) be and the same is hereby DENIED; and
FURTHER ORDERED that this action be and the same is hereby
FURTHER ORDERED that a certificate of appealability be and