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Jackson v. Kemper

United States District Court, E.D. Wisconsin

August 7, 2017

DEBRADRE D. JACKSON, Petitioner,
v.
PAUL S. KEMPER, Respondent.

          ORDER GRANTING MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND SCREENING PETITION (DKT. NO. 1).

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         Debradre D. Jackson filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. Dkt. No. 1. He also filed a motion for leave to proceed without prepayment of the filing fee, along with his prisoner trust fund account statement. Dkt. Nos. 2, 5.

         I. Motion for Leave to Proceed Without Prepaying the Filing Fee

         Under 28 U.S.C. §1915, an indigent litigant may file a petition for habeas corpus relief without paying the required costs and fees if he files an affidavit stating that he does not have the ability “to pay such fees or give security therefor, ” and stating “the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.” 28 U.S.C. §1915(a)(1). Because the filing fee for a petition for habeas corpus is only $5.00, [1] it is rare for this court to conclude that a petitioner does not have sufficient income or assets to pay the fee.

         In this case, the petitioner's trust account activity statement shows that, as of March 30, 2017, he had a balance of $0.00. Dkt. No. 5 at 3. His average monthly balance also was $0.00. Id. Consequently, it does not appear that he can pay the filing fee. The court will grant the petition to proceed without prepayment of fees and costs. Dkt. No. 2.

         II. Screening the Petition

         A. Facts

         On December 10, 2014, the petitioner was convicted in Milwaukee County Circuit Court of substantial battery, repeat offender. Dkt. No. 1 at 2. The circuit court sentenced him to three years of initial confinement and two years of extended supervision, for a total sentence of five years. Id. The Wisconsin Court of Appeals affirmed his conviction, and the Wisconsin Supreme Court denied his petition for review. Id. at 3. He also pursued a post-conviction motion under Wis.Stat. §974.06, which the circuit court denied on November 28, 2016. Id. at 4.

         The petitioner filed this federal habeas petition on March 24, 2017. Dkt. No. 1. The petitioner alleges three grounds of relief. Id. at 6-8. In Ground One, he argues that the trial court violated his Sixth Amendment confrontation clause rights when it admitted a recording of a 911 call; he argues that he was not able to cross-examine the caller. Id. at 6. In Ground Two, the petitioner alleges insufficiency of the evidence; he indicates that the only evidence that he was the perpetrator was the 911 call, and that it was not sufficient to identify him. Id. at 7. In Ground Three, the petitioner asserts that his Fifth Amendment due process rights were violated because no one identified him as the perpetrator of the offense. Id. at 8.

         B. Analysis

         Rule 4 of the Rules Governing §2254 Proceedings states:

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 . . . .

         The screening court must allow a habeas petition to proceed unless it is clear to the court that the petitioner is not entitled to relief in the district court. At the screening stage, the court expresses no view on the merits of any of the petitioner's claims; the court considers only whether the petitioner has stated claims of a type that are generally cognizable on habeas review.

         The Sixth Amendment's Confrontation Clause guarantees a criminal defendant the right to be confronted with the witnesses against him. The petitioner argues that by admitting the recording of the 911 call at his trial, the trial court denied him that right. Without considering the merits of that ...


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