United States District Court, E.D. Wisconsin
ORDER DENYING PETITIONER'S MOTION FOR ORDER FOR
RELEASE PENDING HABEAS CORPUS DISPOSITION (DKT. NO.
PAMELA PEPPER United States District Judge.
October 24, 2016, Shafia Jones filed a petition for writ of
habeas corpus under 28 U.S.C. §2254. Dkt. No.
1. The petition claims that the court that convicted the
petitioner did not have subject matter jurisdiction, that she
is innocent, that her trial counsel was ineffective, that her
conviction violated the Double Jeopardy clause, and that she
was denied due process because she was denied a jury trial.
Id. The deadline for the warden to answer or
otherwise respond was January 17, 2017, dkt. no. 8; the
warden has filed a motion to dismiss in lieu of a brief, dkt.
no. 14, and the petitioner's opposing brief will be due
on or before Friday, January 27, 2017 (see dkt. no. 8 at 2).
On December 6, 2016, however, the petitioner filed this
motion, asking the court to release her pending the
court's decision on her petition. Dkt. No. 10. The
respondent has not filed a response to that motion.
motion, the petitioner asks the court to release her on
personal recognizance without any bond. Id. at 1.
She states that she has lived in Wisconsin for over
thirty-six years, and is not a flight risk. Id. She
plans to live at home with her mother and seven children upon
release, and states that she is not a threat to the
community. Id. She also argues that her conditions
of confinement violate the Constitution. (The petitioner has
another pending case in this district, challenging the
conditions of her confinement under 28 U.S.C. §1983.
See Jones v. Fond du Lac County Jail et al,
16-cv-1156-WED.) The petitioner argues that she is likely to
prevail on the merits of her habeas case for the
reasons she states in her petition. Id. at 1-2.
is abundant authority that federal district judges in habeas
corpus and section 2255 proceedings have inherent power to
admit applicants to bail pending the decision of their cases,
but a power to be exercised very sparingly.” Cherek
v. U.S., 767 F.2d 335, 337 (7th Cir. 1985); see
Kramer v. Jenkins, 800 F.2d 708, 709 (7th Cir. 1986)
(interpreting Cherek to allow federal district
judges to grant bail both to state and federal petitioners);
see also Bolante v. Keisler, 506 F.3d 618,
620 (7th Cir. 2007) (“Inherent judicial authority to
grant bail to persons who have asked for relief in an
application for habeas corpus is a natural incident of habeas
corpus . . . . A judge ought to be able to decide whether the
petitioner should be allowed to go free while his claim to
freedom is being adjudicated.”).
A defendant whose conviction has been affirmed on appeal (or
who waived his right of appeal, as by pleading guilty, or by
foregoing appeal after being convicted following a trial) is
unlikely to have been convicted unjustly; hence the case for
bail pending resolution of his postconviction proceeding is
even weaker than the case for bail pending appeal. And the
interest in the finality of criminal proceedings is poorly
served by deferring execution of sentence till long after the
defendant has been convicted.
Cherek v. U.S., 767 F.2d at 337. Thus, courts should
consider the requirements of the federal statute for bail
pending appeal for a federal conviction (18 U.S.C.
§3143(b)) as a preliminary step in addressing the merits
of a motion for release. Id. at 337-38 (“a
defendant who cannot bring himself within [the terms of
§3143(b)] is not entitled to bail pending …
decision of his postconviction motion.”)
18 U.S.C. §3141(b), a court may allow release pending
appeal only if it finds (A) “by clear and convincing
evidence that the person is not likely to flee or pose a
danger” to the community; and (B) “that the
appeal is not for the purpose of delay and raises a
substantial question of law or fact likely to result
in” a favorable determination.
point in the habeas process, the court cannot
conclude that the petitioner's claims are
“likely” to result in a favorable determination
for her. The court reviewed the documents attached to her
habeas petition and the relevant case dockets on the
Wisconsin Court website. It appears that the petitioner may
have procedurally defaulted her claims. The petitioner
attached to her petition the Wisconsin Court of Appeals'
order denying her state habeas petition; in that
order, it stated that “[t]he direct appeal process is
the proper means through which to obtain the relief Jones
seeks.” Dkt. No. 1-1 at 2. The petitioner's
deadline to file a notice of direct appeal was September 7,
2016. See https://wscca.wicourts.gov/ (State v.
Shafia M. Jones, Case No. 2016XX000935). Instead of
filing a direct appeal, the petitioner pursued her state
habeas petition in the Wisconsin Supreme Court.
See https://wscca.wicourts.gov/ (Shafia Jones v.
Deanne Schaub, Case No. 2016AP001433). The Wisconsin
Supreme Court denied the relief, ex parte.
28 U.S.C. §2254(b)(1)(A), federal courts cannot grant
habeas relief unless the petitioner exhausts the
available state court remedies. The petitioner failed to file
a direct appeal. Neither in her petition, dkt. no. 1, nor in
this motion for release, dkt. no. 10, did the petitioner
explain the cause for her failure to file a direct appeal, or
explain how she would be prejudiced if the court were to deny
her petition despite her failure to appeal. Lewis v.
Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004) (finding
that procedurally defaulted claims are barred from federal
review unless the petitioner can demonstrate both cause and
prejudice, or that denying the petition will result in a
miscarriage of justice.) She does assert that she is actually
innocent, making it a manifest injustice to detain her, but
she does not provide facts to support the contention that she
did not commit the crime. Dkt. No. 10 at 2. Accordingly, the
court finds that the petitioner is unlikely to succeed on her
habeas petition. Because the petitioner did not meet
the preliminary step to obtaining release pending
determination of her habeas petition, the court will
deny the motion.
court notes one other issue. On December 30, 2016, the court
received a letter from the petitioner asking the court
whether it received her motion for counsel and motion for
release. Dkt. No. 13. The court has not received, either in
this case or in the petitioner's §1983 case, a
motion for appointment of counsel. Even if the petitioner had
filed such a motion, she has not made the threshold showing
required by the law. Civil litigants do not have a
constitutional or statutory right to appointed counsel, but
the court has the discretion to request lawyers to represent
indigent litigants in appropriate cases under 28 U.S.C.
§1915(e)(1). Pruitt v. Mote, 503 F.3d 647, 653
(7th Cir. 2007) (en banc); Lutrrell v.
Nickel, 129 F.3d 933, 936 (7th Cir. 1997) (citing
Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995)).
A litigant first must make a reasonable attempt to obtain a
lawyer on her own. Pruitt, 503 F.3d at 654-55;
Zarnes, 64 F.3d at 288. The Seventh Circuit has not
clearly defined the phrase “reasonable attempt to
obtain counsel, ” but it has affirmed one court's
requirement that the litigant provide the names and addresses
of at least three attorneys that the litigant contacted and
who turned her down. Romanelli v. Suilene, 615 F.3d
847, 852 (7th Cir. 2010). Thus, in order for the court to
consider appointing counsel for the petitioner, she must file
a motion demonstrating that she contacted at least three
attorneys and that they turned her down. At that point, the
court will decide whether the case is so complicated, both
factually and legally, that the litigant does not appear able
to handle the case herself. Pruitt, 503 F.3d at 654
(citing Farmer v. Hass, 990 F.2d 319, 322 (7th Cir.
court DENIES the petitioner's motion for order for
release pending habeas ...