Jaimes v. Humphreys - Document No. 2

Jaimes v. Humphreys Doc.
2
Case 2:07-cv-00543-LA Filed 06/15/2007 Page 1 of 3 Document 2
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN
JOSE MISAEL JAIMES,

Petitioner,
v. Case No. 07C0543
ROBERT HUMPHREYS,
Respondent.
DECISION AND ORDER
On June 13, 2007, Jose Misael Jaimes 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. Petitioner was convicted after a jury trial of two counts of delivering
cocaine as a party to the crime and sentenced to 15 years in prison followed by 10 years
of extended supervision. Petitioner is currently incarcerated at Racine Correctional
Institution.
Pursuant to Rule 4 of the Rules Governing § 2254 Cases, I must give the case
prompt initial consideration.
If it plainly appears from the face of the petition and any exhibits annexed to
it that the petitioner is not entitled to relief in the district court, the judge shall
make an order for its summary dismissal and cause the petitioner to be
notified. Otherwise the judge shall order the respondent to file an answer.
Rule 4, 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.
Petitioner raises three grounds for relief. First, he asserts that his conviction
violated the Constitution’s Double Jeopardy Clause because his first trial ended in a
mistrial due to actions of the prosecution. Second, petitioner asserts that, during closing
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arguments, the prosecution commented to the jury about petitioner’s right to remain silent,
in violation of petitioner’s constitutional right against self-incrimination. Third, petitioner
asserts that the prosecution’s closing argument misrepresented to the jury legal and factual
matters in violation of his right to due process of law. Each of these claims is cognizable
in a habeas corpus petition.
THEREFORE, IT IS ORDERED that within 30 days of the date of this order
respondent ANSWER the petition, complying with Rule 5 of the Rules Governing § 2254
Cases, and showing cause, if any, why the writ should not issue.
FURTHER, IT IS ORDERED that unless respondent files a dispositive motion with
its answer the parties shall abide by the following schedule regarding the filing of briefs on
the merits of petitioner’s claims: (1) petitioner shall have 45 days following the filing of
respondent’s answer within which to file his brief in support of his petition; (2) respondent
shall have 45 days following the filing of petitioner’s initial brief within which to file a brief
in opposition; and (3) petitioner shall have 30 days following the filing of respondent’s
opposition brief within which to file a reply brief, if any.
In the event that respondent files a dispositive motion and supporting brief with its
answer, this briefing schedule will be suspended and the briefing schedule will be as
follows: (1) petitioner shall have 45 days following the filing of respondent’s dispositive
motion and supporting initial brief within which to file a brief in opposition; and
(2) respondent shall have 30 days following the filing of petitioner’s opposition brief within
which to file a reply brief, if any.
Pursuant to Civil L.R. 7.1(f), the following page limitations apply: briefs in support
of or in opposition to the habeas petition or a dispositive motion filed by respondent must

not exceed thirty pages and reply briefs must not exceed fifteen pages, not counting any
statements of facts, exhibits, and affidavits.
Petitioner is advised that he must send copies of all future filings with the court to
counsel for respondent, no matter whether in letter, brief, memorandum, or other form.
Until respondent files his or her answer, these copies should be sent to Gregory M. Weber
at the address below. Pursuant to Rule 4 of the Rules Governing § 2254 Cases, copies
of the petition and this order will be mailed to respondent and to the Attorney General for
the State of Wisconsin, c/o Gregory M. Weber, Assistant Attorney General, P.O. Box 7857,
Madison, WI 53707.
Dated at Milwaukee, Wisconsin, this 15 day of June, 2007.
/s__________________________________
LYNN ADELMAN
District Judge

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Jaimes v. Humphreys Doc.

UNITED STATES DISTRICT COURT

JOSE MISAEL JAIMES,

v. Case No. 07C0543

DECISION AND ORDER

of extended supervision. Petitioner is currently incarcerated at Racine Correctional

prompt initial consideration.

in violation of petitioner’s constitutional right against self-incrimination. Third, petitioner

in a habeas corpus petition.

THEREFORE, IT IS ORDERED that within 30 days of the date of this order

FURTHER, IT IS ORDERED that unless respondent files a dispositive motion with

opposition brief within which to file a reply brief, if any.

which to file a reply brief, if any.

of or in opposition to the habeas petition or a dispositive motion filed by respondent must

statements of facts, exhibits, and affidavits.

Dated at Milwaukee, Wisconsin, this 15 day of June, 2007.

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