United States District Court, E.D. Wisconsin
LUIS C. SALINAS, Petitioner,
GARY BOUGHTON, Respondent.
Stadtmueller U.S. District Judge.
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.
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).
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.
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)).
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 case was filed on
April 6, 2017, it satisfies the time constraints of Section
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
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).
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. 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. 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.
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
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.
Cockr ell, 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
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 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.
IT IS ORDERED that Petitioner's petition
for a writ of habeas corpus (Docket #1) be and the
same is hereby DENIED;
IS FURTHER ORDERED that this action be and the same
is hereby DI ...