United States District Court, E.D. Wisconsin
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
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
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
Motion to Proceed Without Prepaying the Filing Fee
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.
Screening the Petition
court reviews a petition for writ of habeas corpus
under Rule 4 of the Rules Governing §2254 Cases, which
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.
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
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.
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.
Motion to Appoint Counsel
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.
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.
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 ...