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Grady v. State

United States District Court, E.D. Wisconsin

June 11, 2019

HOWARD GRADY, Petitioner,
v.
STATE OF WISCONSIN, and JUDY SMITH Respondents.

         ORDER GRANTING PETITIONER'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 8), DENYING WITHOUT PREJUDICE PETITIONER'S MOTION TO APPOINT COUNSEL (DKT. NO. 2) AND SCREENING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS

          Hon. Pamela Pepper United States District Judge.

         On April 18, 2018, Howard Grady, representing himself, filed a petition for a writ of habeas corpus under 28 U.S.C. §2254, challenging the October 2014 revocation of his probation. Dkt. No. 1. The petitioner did not file a motion to waive prepayment of the $5.00 filing fee for habeas cases, so the court issued an order requiring him to do so. Dkt. No. 8. The petitioner complied with the court's instructions and filed a motion for leave to proceed without paying the filing fee along with his prisoner trust account statement. Dkt. No. 98. The court concludes that the petitioner cannot afford the $5.00 filing fee and screens the petition under Rule 4 of the Rules Governing §2254 Cases. Because it does not plainly appear from the face of the petition that the petitioner is not entitled to relief, the court orders the respondent to answer or otherwise respond.

         I. Motion to Proceed without Paying the Filing Fee (Dkt. No. 8)

         There is a $5.00 filing fee for filing a habeas petition. 28 U.S.C. §1914(a). The petitioner filed a motion for the court to allow him to proceed without prepayment of that fee. Dkt. No. 8. He states that he has no assets-no bank account, no retirement account, no investments, no real estate and no valuable other assets. Dkt. No. 8 at 2. The petitioner's trust account statement showed that his regular account had an end balance of $3.98 with an average monthly balance of $2.26. Dkt. No. 9 at 1. His release account showed a starting balance of $56.17 and an end balance of $68.22. Id. at 3. Considering the low balance in the petitioner's regular trust account, the court will allow him to proceed without prepayment of the filing fee.

         II. Motion To Appoint Counsel (Dkt. No. 2)

         With his habeas petition, the petitioner filed a hand-written letter telling the court that he had exhausted all his state remedies, asking the court to allow him to proceed without prepaying the filing fee and asking the court to appoint him a lawyer. Dkt. No. 2. Regarding his request for a lawyer, the petitioner stated that he was unable to find a lawyer, he was not educated enough in the law and he could not afford an attorney. Id. He stated that, with a lawyer, it would be more likely that his petition would succeed. Id.

         There is no statutory or constitutional right to court-appointed counsel in federal civil litigation. Giles v. Godinez, 914 F.3d 1040, 1052 (7th Cir. 2019). This is particularly true in habeas cases. The Seventh Circuit Court of Appeals has held that “[a] litigant is not entitled to appointed counsel in a federal postconviction proceeding, ” although it notes that a district court “may appoint counsel if ‘the interests of justice so require.'” Taylor v. Knight, 223 Fed. App'x 503, 504 (7th Cir. 2007) (citations omitted) (quoting 18 U.S.C. §3006A(a)(2)(B)).

         The court concludes that the interests of justice do not require appointment of counsel for the defendant at this point. To evaluate motions to appoint counsel, the district court engages in a two-step process. Giles, 914 F.3d at 1052. First, the court determines if the plaintiff “made a reasonable attempt to secure counsel on his own.” Id. at 1053 (citing Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013)). Second, the court determines “whether the difficulty of the case-factually and legally-exceeds the particular plaintiff's capacity as a layperson to coherently present it[.]” Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007). The petitioner has not satisfied the first step of the process-he has not demonstrated (by providing the court with proof that he contacted at least three lawyers who declined to help him) that he has tried to find a lawyer on his own. Even if he had satisfied the first step, however, the court does not think that the case currently exceeds the plaintiff's capacity to present it. The petitioner has presented enough information-and has presented it clearly enough-for the court to be able to screen his petition. The court will deny the petitioner's motion to appoint counsel without prejudice. That means that the petitioner can renew his motion at a later date, if he can show the court that he unsuccessfully tried to find a lawyer on his own, and if he can show that the case is so complex that he cannot explain his claims for himself.

         II. Rule 4 Screening

         A. Background

         In July of 2014, the petitioner was convicted in state court of being a party to the crime of burglary; the sentencing court withheld sentence and placed him on probation. Dkt. No. 1-1 at 1. About a month later, police responded to a domestic violence incident at petitioner's home. Id. at 2. They found the petitioner's girlfriend (“K.C.”) “possibly seizing” and “with evident injuries to her head, face, and body.” Id. K.C. told police that the petitioner repeatedly struck her with a hammer and threatened to kill her. Id. at 2. Based on this allegation, the petitioner appeared in person and with counsel for a probation revocation hearing before an administrative law judge on October 23, 2014. Id. at 11. The administrative law judge revoked the petitioner's probation and sentenced him to twelve and a half years of imprisonment. Id. at 2.

         The petition alleges that the State of Wisconsin violated the petitioner's constitutional rights during the probation revocation proceeding. The petitioner argues that the state violated his Sixth Amendment right to confront witnesses because K.C. did not appear or testify at the revocation hearing. Dkt. No. 1 at 4. He asserts that the admission of K.C.'s hearsay testimony violated his Fourteenth Amendment right to due process. Finally, he ...


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