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Garcia v. Boughton

United States District Court, E.D. Wisconsin

June 30, 2017

VICTOR GARCIA, Petitioner,
v.
GARY BOUGHTON, Respondent.

          ORDER

          J. P. STADTMUELLER, U.S. DISTRICT JUDGE

         1. INTRODUCTION

         Petitioner Victor Garcia (“Garcia”) filed a petition for writ of habeas corpus on March 22, 2017. (Docket #1). After going through several iterations, the Court screened the current version of that petition on May 10, 2017. (Docket #13). The Court noted that Garcia's claims were likely in procedural default, but allowed him to proceed past screening. Id. On June 6, 2017, Respondent moved to dismiss Garcia's petition on that ground. (Docket #16). The motion is now fully briefed. (Response, Docket #18; Reply, Docket #19). For the reasons explained below, the Court's suspicions have proven correct, and Garcia's petition must be dismissed as procedurally defaulted.

         2. BACKGROUND

         The two opinions produced by the Wisconsin Court of Appeals in Garcia's state court litigation together provide the relevant background to the instant case. On June 3, 2014, on direct appeal, the Court of Appeals summarized Garcia's crimes and arguments:

Victor Garcia appeals a judgment convicting him after a jury trial of two counts of armed robbery with use of force, one count of substantial battery with use of a dangerous weapon, one count of armed burglary with a dangerous weapon, and one count of felony bail jumping, all as a repeater and all as a party to a crime except for bail jumping. Victor Garcia also appeals an order denying his postconviction motion. He argues that his trial lawyer provided him with constitutionally ineffective assistance. We affirm.
Victor Garcia, Fernando Garcia and Isaac Cortez were charged with armed robbery and other counts for entering the apartment of Scott Lynch and Mark Brown in the middle of the night, robbing them and beating them. The State argued at trial that Cortez was angry at Brown and wanted to hurt him for alleged improprieties with Cortez's girlfriend. The State contended Cortez enlisted the help of Victor and Fernando Garcia by telling them they could steal drugs and money at the apartment. Victor Garcia's defense at trial was that he was not involved at all; his brother Fernando Garcia committed the crimes with Cortez, but he was not present. The jury convicted him of all of the charges against him.
Victor Garcia moved for postconviction relief, arguing that he received constitutionally ineffective assistance from his trial lawyer. He contended that his lawyer should have moved to suppress a pair of Nike tennis shoes he was wearing when he was arrested at his mother's house. The shoes tied Victor Garcia to the crime scene because they had paint splatters on them that were consistent with paint found at the victims' apartment. Victor Garcia argued that the shoes should not have been admitted because the police did not have a warrant to enter his mother's home where they arrested him and his mother did not consent to the police entering and searching her home. After an evidentiary hearing, the circuit court denied the postconviction motion.
On appeal, Victor Garcia contends that his trial lawyer provided constitutionally ineffective representation by failing to move to suppress admission of the Nike shoes.

State of Wisconsin v. Garcia [Garcia I], 2012-AP-1685, 2014 WL 2462819, at *1 (Wis. Ct. App. 2014). The court affirmed Garcia's conviction because any supposed error by his trial counsel was harmless; the evidence against him was overwhelming. Id. at *4.

         On April 27, 2016, the Court of Appeals addressed Garcia's post-conviction motion filed pursuant to Wis.Stat. § 974.06:

Victor Garcia appeals, pro se, an order denying his motion for a new trial filed pursuant to Wis.Stat. § 974.06 (2013-14). Garcia argues that postconviction counsel was ineffective in failing to raise claims that trial counsel was constitutionally ineffective in several respects. He asserts that he is, therefore, entitled to a new trial. Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. See Wis. Stat. Rule 809.21. We affirm the order.
. . .
On December 4, 2014, proceeding pro se, Garcia filed a postconviction motion under Wis.Stat. § 974.06 alleging that, in failing to raise clearly stronger issues in a previous postconviction motion, postconviction counsel performed deficiently and this prejudiced Garcia. Garcia alleged that, because of this failure, his § 974.06 motion for a new trial based on trial counsel's ineffective assistance is not procedurally barred. The circuit court permitted Garcia to argue his motion. However, no testimony ...

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