United States District Court, E.D. Wisconsin
QUORDALIS V. SANDERS, Petitioner,
BRIAN FOSTER, Respondent.
JOSEPH United States Magistrate Judge
Sanders, who is currently incarcerated at Waupun Correctional
Institution, seeks a writ of habeas corpus under 28 U.S.C.
§ 2254. (Docket # 5.) Accompanying his petition is a
motion for leave to proceed in forma pauperis.
(Docket # 2.) Sanders has also submitted his prison account
statement for the 6-month period immediately preceding the
filing of the petition, in accordance with 28 U.S.C. §
1915(a)(2). (Docket # 3.)
a habeas petitioner must pay a statutory filing fee of $5.00
to file an application for habeas review in federal court. 28
U.S.C. § 1914(a). However, under 28 U.S.C. §
1915(a)(1), the court may authorize the commencement of a
habeas petition without prepayment of fees if a party submits
an affidavit asserting his inability to pay and stating
“the nature of the action, defense or appeal and
affiant's belief that the person is entitled to
redress.” Upon review of Sanders' affidavit and his
prison account statement, I find that he has insufficient
assets to pay the $ 5.00 filing fee. Accordingly,
Sanders' motion to proceed without prepayment of the
filing fee (Docket # 2) is granted.
now review his petition in accordance with Rule 4 of the
Rules Governing Section 2254 Cases. Section 2254(a) provides
that a district court “shall entertain an application
for a writ of habeas corpus [o]n behalf of a person in
custody in violation of the Constitution or laws or treaties
of the United States.” Under Rule 4, the district court
must dismiss a petition summarily if “it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
court.” During the initial review of habeas petitions,
the Court generally reviews whether the petitioner has set
forth cognizable constitutional or federal law claims and
exhausted available state remedies.
first ground for relief is a Fourth Amendment violation.
(Docket # 1 at 6.) Sanders' alleges that the magistrate
who issued his arrest warrant was not neutral. Generally,
there is no federal habeas review for Fourth Amendment
violations. Sutton v. Pfister, 834 F.3d 816, 820
(7th Cir. 2016). However, a petitioner qualifies for the
narrow exception “if he was not afforded the
opportunity for full and fair consideration of his
search-and-seizure claim at trial court and direct
review.” Id. (quoting Stone v.
Powell, 428 U.S. 465, 486 (1976)). Because a possible
exception applies, it is not plain from the face of the
petition that Sanders is not entitled to relief.
Sanders raises a vindictive prosecution claim. (Docket # 5 at
7.) It appears that Sanders alleges that the prosecutor
charged him with additional crimes after Sanders raised his
right to a preliminary hearing. (Id.) The Seventh
Circuit has recognized vindictive prosecution as a valid Due
Process constitutional claim for habeas petitioners. See
Williams v. Bartow, 481 F.3d 492, 502 (7th Cir. 2007).
Third, Sanders argues that he was convicted based on
insufficient evidence. (Docket # 5 at 8.) Insufficiency of
evidence has also been recognized as a cognizable Due Process
claim available for habeas relief. See Carrion v.
Butler, 835 F.3d 764, 773 (7th Cir. 2016).
Sanders raises an ineffective assistance of trial counsel
claim as well as an ineffective assistance of post-conviction
counsel claim. An ineffective assistance of counsel
allegation is a clear constitutional ground for habeas
relief. Strickland v. Washington, 466 U.S. 668
(1984). Although not entirely clear, it appears Sanders
claims that his counsel failed to raise important evidence
during his trial and post-trial proceedings. (Docket # 5 at
10.) Upon review of the petition, it is not plain from the
face of the petition that Sanders is not entitled to relief.
THEREFORE, IT IS ORDERED that a copy of Sanders' petition
and this Order shall be served upon the respondent by service
upon the State of Wisconsin Attorney General.
FURTHER ORDERED that the respondent is directed to serve and
file an answer, motion, or other response to the petition for
writ of habeas corpus, complying with Rule 5 of the Rules
Governing Habeas Corpus Cases, within SIXTY (60) days of the
date of this order.
FURTHER ORDERED THAT unless the respondent files a
dispositive motion in lieu of an answer, the parties shall
abide by the following schedule regarding the filing of
briefs on the merits of the petitioner's claims:
petitioner shall have forty-five (45) days following the
filing of the respondent's answer within which to file
his brief in support of his petition;
respondent shall have forty-five (45) days following the
filing of the petitioner's initial brief within which to
file a brief in opposition; and
petitioner shall have thirty (30) days following the filing
of the respondent's opposition brief within which to file
a reply brief, if any.
event that respondent files a dispositive motion and
supporting brief in lieu of an answer, this briefing schedule
will be suspended ...