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Williams v. Eckstein

United States District Court, E.D. Wisconsin

August 2, 2017

JOVAN WILLIAMS, Petitioner,
v.
WARDEN SCOTT ECKSTEIN, Respondent.

          ORDER GRANTING MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), DENYING WITHOUT PREJUDICE PETITIONER'S MOTION TO APPOINT COUNSEL (DKT. NO. 4), AND REQUIRING RESPONDENT TO FILE AN ANSWER OR OTHER RESPONSIVE PLEADING

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         On April 27, 2017, Jovan Williams filed a petition for writ of habeas corpus, challenging an October 22, 2013 judgment in Milwaukee County Circuit Court convicting him of felony murder, as a party to a crime, with armed robbery as the predicate offense. Dkt. No. 1. The petitioner also filed a motion for leave to proceed without prepayment of the $5 filing fee, dkt. no. 2, a certified copy of his trust account statement, dkt. no. 3, and a motion to appoint counsel, dkt. no. 4. This order grants the motion to proceed without the prepayment of the filing fee, screens the petitioner, and denies without prejudice the motion for appointment of counsel.

         I. Motion to Proceed Without Prepaying the Filing Fee

         The petitioner's petition to proceed without prepayment of the $5.00 filing fee indicates that the petitioner has no bank account, no retirement account, no investments, no real estate, and no valuable assets. Dkt. No. 2. The petitioner filed a trust account statement for the period from October 25, 2016 through April 25, 2017-the six months prior to the date he filed his petition. Dkt. No. 3. The petitioner's beginning balance on October 25, 2016 was $0, and his ending balance on April 25, 2017 was $0. Id. The court concludes from this information that the petitioner does not have the ability to pay the $5.00 filing feel, and will grant his motion to proceed without prepayment of the filing fee.

         II. Screening the Petition

         The court reviews a petition for writ of habeas corpus under Rule 4 of the Rules Governing §2254 Cases, which provides:

If it plainly appears from 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, or take other action the judge may order.

         Rule 4, Rules Governing §2254 Cases. The court generally reviews whether the petitioner has set forth cognizable constitutional or federal law claims. A petitioner may not obtain habeas relief for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).

         The petitioner's first ground for relief asserts that the state did not prove beyond a reasonable doubt that he participated in the robbery. Dkt. No. 1 at 6-7. His second ground alleges that his trial lawyer provided ineffective assistance of counsel, because counsel failed to: (1) file pretrial motions; (2) move to suppress evidence, (3) address inconsistent statements, (4) adequately impeach the victim, (5) move to dismiss, (6) seek a special instruction relating to felony murder, and (7) enter a special plea. Id. at 7. As his third ground, the petitioner claims that his appellate counsel erred by filing a no-merit brief without consulting the petitioner, and did not raise his trial counsel's errors. Id. at 8. Finally, in ground four, the petitioner asserts that the circuit court abused its sentencing discretion in failing to consider his history or status as a victim, and in sentencing him to fifteen years when he did not participate in the crime. Id. at 9.

         The petitioner's first three grounds-insufficient evidence, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel- state claims under the Due Process Clause of the Fourteenth Amendment and under the Sixth Amendment. The court will allow him to proceed on those claims. The petitioner's argument that the state court abused its sentencing discretion, however, is an allegation that the sentencing court committed a state law error; habeas relief is not available for a claim of an error of state law. See Estelle, 502 U.S. 67-68.

         III. Motion to Appoint Counsel

         The petitioner also asks the court to appoint counsel. The Criminal Justice Act, 18 U.S.C. § 3006A(a)(2)(B), permits the court to appoint counsel for a petitioner seeking habeas relief under 28 U.S.C. § 2254. The court must find that the appointment of counsel would serve “the interests of justice” and that the petitioner is “financially eligible.” 18 U.S.C. § 3006A(a)(2). “Due process does not require appointment of counsel for indigent prisoners pursuing . . . federal habeas relief.” Pruitt v. Mote, 503 F.3d 647, 657 (7th Cir. 2007). Indigent civil litigants have no constitutional or statutory right to counsel in federal court. Id. at 649.

         In deciding whether to appoint counsel, the court looks to the standards that courts follow in civil cases involving indigent plaintiffs. Wilson v. Duckworth, 716 F.2d 415, 418 (7th Cir. 1983); Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992). The court first asks whether the litigant has attempted to obtain counsel himself, or has been effectively precluded from doing so. Pruitt, 503 F.3d at 654-55; Jackson, 953 F.2d at 1072-73.

         Once the petitioner has established that his reasonable efforts to obtain counsel were unsuccessful, the court conducts “a two-fold inquiry into both the difficulty of the plaintiff's claims and the plaintiff's competence to litigate those claims himself.” Pruitt, 503 F.3d at 655. “The question is whether the difficulty of the case-factually and legally-exceeds the particular [party's] capacity as a layperson to coherently present it to the judge or jury himself.” Id. Whether a party appears competent to litigate his own claims, given their difficulty, includes consideration of all parts of litigation, including evidence gathering and responding to motions. Id. Regarding the ...


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