United States District Court, W.D. Wisconsin
D. PETERSON District Judge.
Petitioner Adrian Alexander Starks is currently in the
custody of the Wisconsin Department of Corrections at the
Redgranite Correctional Institution. He seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging
his state court conviction for two counts of first-degree
reckless homicide-under Wisconsin's “Len
Bias” law assigning criminal liability to the
manufacturer or distributor of a controlled substance that is
a substantial factor in a victim's death-and one count of
delivery of more than 50 grams of heroin. Dkt. 9. After the
parties briefed Starks's petition, it became apparent
that two key pieces of evidence that Starks pointed to in
support of his claim that his trial counsel was ineffective
had not been presented to the Wisconsin state courts: Dr.
Robert Huntington's dictated notes from his May 6, 2005
autopsy of the victim (which Starks didn't obtain until
briefing in this case was nearly complete) and a July 25,
2005 toxicology report (which Starks obtained before the
postconviction relief proceedings but didn't present to
the state courts because he didn't understand its
importance). See Dkt. 51. As a result, I cannot
consider those pieces of evidence. In a September 13, 2017
order, I presented two options to Starks: (1) stay his §
2254 petition in this court so that he may present claims on
the new evidence in state court; or (2) proceed with his
§ 2254 petition without considering the new evidence.
chooses the first option, Dkt. 52, so I will stay his
petition. The stay may not be indefinite-I must “place
reasonable time limits on [Starks's] trip to state court
and back.” Rhines v. Weber, 544 U.S. 269, 278
(2005). So Starks must present his claims in state court
within 90 days of the date of this order. And his must ask
this court to lift the stay no later than 30 days after the
conclusion of the final state court proceedings. The court
will then schedule further proceedings in this case.
response to my September 13 order, Starks asks me a number of
procedural questions, such as whether he should bring an
ineffective assistance of counsel claim or a Brady
claim in state court. As Starks acknowledges, I cannot offer
him legal advice. But I will construe his questions as a
request for appointment of counsel. The Criminal Justice Act,
18 U.S.C. § 3006A(a)(2)(B), authorizes district courts
to appoint counsel for a petitioner seeking habeas relief
under 28 U.S.C. § 2254. Representation may include
“ancillary matters appropriate to the
proceedings.” § 3006A(c). The unusual
circumstances of this case meet that definition: Starks
discovered new evidence while briefing his § 2254
petition; the court cannot consider that evidence until
Starks has exhausted his claims based on it; Starks could not
have exhausted those claims earlier because he didn't
have the evidence then; and Starks's claims are not
plainly meritless. So I may appoint counsel to represent
Starks in state court as he exhausts claims based on the new
evidence, as long as he is otherwise eligible. See
Waiters v. Lee, No. 13- cv-3636, 2013 WL 6579616, at *1
(E.D.N.Y. Nov. 5, 2013) (staying a § 2254 petition and
appointing counsel under § 3006A to represent the
petitioner as he exhausts claims in state court).
of counsel is appropriate if it would serve “the
interests of justice” and if the petitioner is
“financially eligible.” § 3006A(a)(2). Two
additional considerations are relevant to the interest of
justice prong: whether the petitioner has attempted to obtain
representation on his own, Jackson v. County of
McLean, 953 F.2d 1070, 1073 (7th Cir. 1992), and whether
the difficulty of the case exceeds the petitioner's
ability to litigate his claims himself, Pruitt v.
Mote, 503 F.3d 647, 655 (7th Cir. 2007). To determine a
petitioner's competence to litigate his own case, the
court considers his literacy, communication skills, education
level, and litigation experience. Id.
financially eligible for appointment of counsel, Starks does
not have to be indigent; he must demonstrate only that he is
financially unable to obtain counsel. United States v.
Sarsoun, 834 F.2d 1358, 1362 (7th Cir. 1987) (“The
Criminal Justice Act . . . merely requires that a defendant
be financially unable to obtain counsel-a lower standard than
indigency.”). Although Starks bears the ultimate burden
of demonstrating his financial eligibility, “[a]ny
doubts as to a person's eligibility should be resolved in
the person's favor; erroneous determinations of
eligibility may be corrected at a later time.” Admin.
Office of the U.S. Courts, Guide to Judiciary Policies and
Procedures, Vol. 7, pt. A, § 210.40.30(b). Starks qualified
for a public defender during his state-court proceedings. He
is now in prison, where his financial situation presumably
has not improved. Applying the principles discussed above, I
conclude that Starks is financially unable to obtain counsel.
also persuaded that appointing Starks counsel would serve the
interests of justice. Starks's claims concern complex
procedural issues at both the state and federal levels. So I
will appoint counsel to represent him. Starks should be aware
that if the court later finds that he is financially able to
retain counsel, it may terminate the appointment of counsel
as the interests of justice dictate, and also may direct him
to reimburse his attorney for the cost of representation.
§ 3006A(c), (f).
proceedings are STAYED pending appointment of counsel for
petitioner Adrian Alexander Starks and exhaustion of claims
in state court.
counsel is appointed, Starks must present his claims in state
court within 90 days. He must ask this court to lift the stay
no later than 30 days after the conclusion of the final state
 18 U.S.C. § 3599, which provides
for the appointment of federal counsel in death penalty
cases, contains a similar provision: counsel may represent
their client in “other appropriate motions and
procedures.” § 3599(e). The Supreme Court has
explained that under this provision, “a district court
may determine on a case-by-case basis that it is appropriate
for federal counsel to exhaust a claim in the course of her
federal habeas representation.” Harbison v.
Bell, 556 U.S. 180, 190 n.7 (2009). At least one court
has suggested that the Harbison test is applicable
to § 3306A(c), too. See ...