United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
1, 2017, Victor Garcia (“Garcia”) filed a second
amended petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. (Docket #12). As noted previously, Garcia
was convicted of various felony charges related to a burglary
and is currently confined in the Wisconsin Secure Program
Facility. (Docket #6 at 1). Rule 4 of the Rules Governing
Section 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
court begins its Rule 4 review by examining the timeliness of
Garcia's 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 ninety days allowed for filing for
certiorari. See Ray v. Clements, 700 F.3d 993, 1003
(7th Cir. 2012).
it appears that Garcia's petition is may be untimely.
According to the petition and publicly available information
on Garcia's underlying criminal case, State of
Wisconsin v. Victor Garcia, 2009-CF-807 (Rock Cnty. Cir.
Ct.), Garcia was convicted in July 2010. Garcia filed a state
post-conviction motion in 2012, via post-conviction counsel,
alleging ineffectiveness on the part of his trial counsel.
This was finally denied in September 2014. He filed a second
state post-conviction motion, pro se, in December
2014, arguing that his counsel on the first post-conviction
motion was ineffective in failing to raise certain arguments
in that motion. That motion too was denied, as of June 2016.
The instant case was filed on March 22, 2017. (Docket #1). It
appears, then, that despite any tolling afforded by the
pendency of Garcia's state post-conviction motions, the
statute of limitations may have run on his habeas corpus
petition. Because the limitations issue is not clear on this
record, however, the Court will allow Garcia to proceed past
court continues its Rule 4 review by examining Garcia's
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.”). 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)). 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).
it appears that the claims in Garcia's petition have been
exhausted. Garcia presents the following three of claims for
relief in his petition: 1) in assessing his first
post-conviction motion, the Wisconsin Court of Appeals erred
in refusing to take note of Garcia's repeated attempts to
highlight his counsel's ineffectiveness; 2) in assessing
his second post- conviction motion, the Wisconsin Court of
Appeals erred in finding that his post-conviction counsel was
not ineffective; and 3) actual innocence, based on a
favorable finding on the first or second claim. (Docket #12
at 6-11). The Wisconsin Supreme Court denied Garcia's
petition for review of the Court of Appeals' rulings on
these claims. Therefore, these claims appear to have been
fully exhausted in state court.
court next reviews Garcia's petition under Rule 4 to
determine whether he has procedurally defaulted on any of his
claims. Even though a constitutional claim in a federal
habeas petition has been exhausted, the court is still barred
from considering the claim if it has been procedurally
defaulted by the petitioner. See Mahaffey v.
Schomig, 294 F.3d 907, 915 (7th Cir. 2002). A state
prisoner procedurally defaults on a constitutional claim in a
habeas petition when he fails to raise the claim in the
state's highest court in a timely fashion or in the
manner prescribed by state law. Thomas v.
McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000).
it appears that Garcia may have procedurally defaulted on at
least some of his claims. In the latest opinion from the
Wisconsin Court of Appeals in Garcia's saga, dated April
27, 2016, the court mentions that Garcia may be barred by a
procedural misstep. (Docket #12-1 at 29-35). Specifically,
the court found that Garcia should have raised certain claims
in his first post- conviction motion, and his failure to do
so could bar him from bringing those again in his second
motion. Id. at 32-33; see State of Wisconsin v.
Escalona- Naranjo, 517 N.W.2d 157, 185-86 (Wis. 1994).
The court went on, nevertheless, to discuss his
ineffectiveness claims as part of an exception to that
procedural bar. (Docket #12-1 at 32-34). Consequently, this
Court will not conclude at the screening stage that Garcia
has procedurally defaulted.
Court concludes its Rule 4 review by screening for patently
frivolous and speculative claims in Garcia's federal
habeas petition. Ray, 700 F.3d at 996 n.1.
Garcia's claims appear thin due to their layered nature.
Garcia argues that his post-conviction counsel was
ineffective for failing to fully address the ineffectiveness
of his trial counsel. (Docket #12 at 6-9). He then contends
that if his various lawyers were not ineffective, this would
have eliminated evidence essential to his convictions.
Id. at 10-11. Despite how unlikely this chain of
reasoning may be, it does not plainly appear that
Garcia's claims are so frivolous or speculative as to
merit dismissal at screening. The court will direct the
respondent to file an answer to Garcia's claims in the
amended petition. The Court notes, however, that the
respondent has much more complete access to the underlying
facts of this case, and so he is free to use those facts to
raise any procedural infirmities which did not merit
dismissal in this Order.
IT IS ORDERED that the parties shall proceed
in accordance with the following schedule:
Within 30 days of entry of this order, the respondent shall
file either an appropriate motion seeking dismissal of this
action or answer the petition, complying with Rule 5 of the
Rules Governing § 2254 Cases, and showing cause, if any,
why the writ should not issue; and
the respondent files an answer, then the parties should abide
by the following briefing schedule:
a. The petitioner shall have 60 days after the filing of the
respondent's answer within which to file a brief in
support of his petition, providing reasons why the writ of
habeas corpus should be issued. The petitioner is reminded
that, in accordance with 28 U.S.C. § 2248, unless he
disputes allegations made by the respondent in his answer or
motion to dismiss, those allegations “shall be accepted
as true except to the extent that the judge finds from the
evidence that they are not true.”
b. The respondent shall file an opposition brief, with
reasons why the writ of habeas corpus should not be issued,
within 60 days of service of petitioner's brief, or
within one hundred and 120 days from the date ...