United States District Court, E.D. Wisconsin
GARY A. AMAYA, Petitioner,
QUALA CHAMPAGNE, Respondent.
WILLIAM C. GRIESBACH, CHIEF JUDGE
Gary A. Amaya filed a petition pursuant to 28 U.S.C. §
2254, asserting that his state court conviction and sentence
were imposed in violation of the Constitution. Amaya was
convicted of one count of conspiracy to deliver cocaine and
four counts of possession of cocaine, all as a second or
subsequent offense. He was sentenced to one year of initial
confinement and one year of extended supervision for each
possession count and six years of initial confinement and
four years of extended supervision on the conspiracy to
deliver count, all to be served concurrently.
give the case prompt initial consideration pursuant to Rule 4
of the Rules Governing § 2254 Cases, which reads:
If it plainly appears from the face of the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner. If
the petition is not dismissed, the judge must order the
respondent to file an answer, motion, or other response
within a fixed time . . . .
Rules Governing § 2254 Cases. During my initial review
of habeas petitions, I look to see whether the petitioner has
set forth cognizable constitutional or federal law claims and
exhausted available state remedies.
initial matter, Amaya asserts that “in general the
prosecution and resulting conviction violates his 4th, 5th,
6th, and 14th Amendment rights.” This assertion is
conclusory, as Amaya presents no facts to support his claim.
“Habeas corpus petitions must meet heightened pleading
requirements . . . .” McFarland v. Scott, 512
U.S. 849, 856 (1994) (citing 28 U.S.C. § 2254 Rule
2(c)). The petition must “specify all the grounds for
relief available to the moving party, ” and
“state the facts supporting each ground.” 28
U.S.C. § 2255, Rule 2(b); see also Borden v.
Allen, 646 F.3d 785, 810 (11th Cir. 2011) (“The
§ 2254 Rules and the § 2255 Rules mandate
“fact pleading” as opposed to “notice
pleading, ” as authorized under Federal Rule of Civil
Procedure 8(a).”). The reason for the heightened
pleading requirement in habeas cases, as the Eleventh Circuit
noted in Borden, is obvious:
Unlike a plaintiff pleading a case under Rule 8(a), the
habeas petitioner ordinarily possesses, or has access to, the
evidence necessary to establish the facts supporting his
collateral claim; he necessarily became aware of them during
the course of the criminal prosecution or sometime
afterwards. The evidence supporting a claim brought under the
doctrine set forth in Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for example, may
not be available until the prosecution has run its course.
The evidence supporting an ineffective assistance of counsel
claim is available following the conviction, if not before.
Whatever the claim, though, the petitioner is, or should be,
aware of the evidence to support the claim before bringing
Id. at 810. Were the rule otherwise, federal habeas
would be transformed into “a vehicle for a so-called
fishing expedition via discovery, an effort to find evidence
to support a claim.” Id. at 810 n.31. Because
Amaya's blanket statement that his conviction violates
his constitutional rights is not supported by any facts, he
may not proceed on this claim. The court will now turn to
Amaya's more developed grounds for relief.
asserts two grounds for relief. First, he alleges that his
trial counsel was ineffective for various reasons: (1)
failing to argue that the search and seizure of text messages
violated his constitutional rights and that the messages
should be suppressed and (2) failing to argue that the use of
these illegal text messages in an application for a warrant
tainted the validity of the order. From the face of the
petition, the court cannot conclude that the claims lack
merit. Accordingly, Amaya will be allowed to proceed on these
ineffective assistance of counsel claims.
also asserts that his post-conviction motion should not have
been assigned to Judge Dugan, the judge that presided over
his criminal trial. He alleges that Judge Dugan could not be
impartial or be expected to change his own rulings and did
not consider the merits of his motion. The mere fact the
judge presided over his criminal trial is not grounds for
habeas corpus relief. Indeed, under the federal equivalent of
Wis.Stat. § 974.02, the judge who heard the trial
resolves the motion. See Eaton v. United States, 458
F.2d 704, 707 (7th Cir. 1972) (“It is clear, however,
that the normal and appropriate procedure is to assign a
§ 2255 motion to the sentencing judge. . . . [T]he same
judge who accepted the guilty plea may bring to bear his
personal knowledge of the prior proceedings, which is an
advantage rather than a mark of inherent prejudice.”).
Amaya has not alleged any facts that would suggest that the
judge who reviewed his post-conviction motion was biased.
Therefore, this claim is dismissed.
IS THEREFORE ORDERED that within 45 days of the date
of this order Respondent shall either file an appropriate
motion seeking dismissal 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.
IS FURTHER ORDERED that Petitioner shall have 30
days following the filing of Respondent's answer within
which to file a reply brief.
IS FURTHER ORDERED that once a reply is filed, the
court will determine whether further briefing is required.
Petitioner's filings will be electronically scanned and
entered on the docket upon receipt by the clerk, Petitioner
need not mail to counsel for the ...