United States District Court, E.D. Wisconsin
TIMOTHY T. MURRY, Petitioner,
SCOTT ECKSTEIN, Respondent.
ORDER GRANTING MOTION TO PROCEED WITHOUT PREPAYMENT
OF FILING FEE AND RULE 4 ORDER
JOSEPH UNITED STATES MAGISTRATE JUDGE.
T. Murry, who is currently incarcerated at the Green Bay
Correctional Institution, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (Docket # 1.) Accompanying
his petition is a motion for leave to proceed without
prepayment of the filing fee. (Docket # 3.) Murry 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 # 10.)
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 Murry's affidavit and his
prison account statement, I find that he has insufficient
assets to pay the $5.00 filing fee. Accordingly, Murry's
motion to proceed without prepayment of the filing fee
(Docket # 3) 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.
alleges a violation of his right to be free of double
jeopardy, prosecutorial misconduct, and ineffective
assistance of appellate counsel. (Docket # 1.) Thus, the
grounds stated by Murry in his petition translate, at least
colorably, into violations of Murry's rights under the
United States Constitution. Murry alleges that he exhausted
his state court remedies as to all three grounds for relief.
I conclude that summary dismissal under Rule 4, Rules
Governing Habeas Corpus Cases, is not appropriate because it
does not plainly appear from “the face of the
petition” that the petitioner is not entitled to
relief. Consequently, the respondent will be called upon to
serve and file an answer, motion, or other response to the
petition for a writ of habeas corpus.
THEREFORE, IT IS ORDERED that the petitioner's motion for
leave to proceed without prepayment of the filing fee (Docket
# 3) is GRANTED.
FURTHER ORDERED that a copy of the petitioner's 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:
1. Although the petitioner has already filed a brief (Docket
# 2), should the petitioner wish to file an additional
opening brief, the petitioner shall have forty-five (45) days
following the filing of the respondent's answer within
which to file an additional brief in support of his petition;
2. Should the petitioner file an additional brief in support
of his habeas petition, the respondent shall have forty-five
(45) days following the filing of the petitioner's brief
within which to file a brief in opposition. Should the
petitioner chose not to file an additional brief, the
respondent's brief in opposition is due ninety (90) days
after the answer is filed; and
3. The 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 ...