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Brown v. Pollard

United States District Court, E.D. Wisconsin

December 5, 2019

DERRICK D. BROWN, Petitioner,
v.
WILLIAM POLLARD, Respondent.

         ORDER DENYING WITHOUT PREJUDICE PETITIONER'S MOTION TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 2), REQUIRING PETITIONER TO PAY FILING FEE OR FILE TRUST ACCOUNT STATEMENT AND GRANTING MOTIONS TO STAY PROCEEDINGS SO PETITIONER MAY EXHAUST STATE COURT REMEDIES (DKT. NOS. 5, 7, 8)

          Hon. Pamela Pepper Chief United States District Judge.

         On May 14, 2019, Derrick Brown, who doesn't have a lawyer, filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his January 14, 2016, judgment of conviction in Milwaukee County Circuit Court for first degree sexual assault by use of a dangerous weapon, kidnapping with forceful carrying, and substantial battery by use of a dangerous weapon. Dkt. No. 1. The petitioner also asked the court for leave to proceed without prepaying the filing fee. Dkt. No. 2. Since then, he has filed a letter explaining to the court that he filed a motion with the court of appeals raising ineffective assistance of counsel, dkt. no. 5; a request for an update on the status of the case, dkt. no. 6; a motion to stay the case until the petitioner could refile a motion in state court raising the issue of ineffective assistance of appellate counsel, dkt. no. 7; and a request to amend the habeas petition, dkt. no. 8.

         I. Motion to Proceed without Paying the Filing Fee (Dkt. No. 2)

         There is a $5.00 filing fee for filing a habeas petition. 28 U.S.C. §194(a). The petitioner filed a petition asking the court to allow him to proceed without prepaying that fee. Dkt. No. 2. Page one of the petition explains that prisoners seeking to proceed without prepaying the fee should complete and return the form and the attached authorization, and provide the court with a certified copy of his institutional trust account statement for the past six months. Dkt. No. 2 at 1. The petitioner filled out the form, saying that he gets four dollars every two weeks, that the prison takes 90% of that and that he saves the rest for hygiene. Id. at 2. This may be, but without the petitioner's trust account statement, the court can't confirm that. The petitioner filed an authorization for release of institutional account information, dkt. no. 1-1 at 3, but he needed to give a copy of that authorization to the institution business office and ask them to give him, or to send to the court, a copy of his trust account statement. The court will deny the petition for leave to proceed without prepaying the filing fee without prejudice, which means that the petitioner may either pay the $5.00 filing fee or provide the court with his trust account statement, along with a request that the court reconsider his request to proceed without prepaying the fee.

         II. Rule 4 Screening

         A. Background

         After a jury found the petitioner guilty of all counts, the circuit court judge sentenced the petitioner to a term of sixty-six years. Dkt. No. 1. The petitioner filed a motion for postconviction relief arguing ineffective assistance of counsel. Dkt. No. 1-1 at 2. He alleged that his counsel should have introduced evidence from a police report showing that the complaining witness had identified men other than him as her assailant (1) when shown a photo array that included photos of him and (2) during a live lineup in which he was present. Id. at 4. The circuit court denied the motion on the ground that the petitioner could not establish prejudice. Id.

         The petitioner filed a direct appeal. Id. at 1. The Wisconsin Court of Appeals agreed that he could not show that there was a reasonable probability that the result of the proceeding would have been different but for counsel's conduct. Id. at 6. Specifically, the court cited the petitioner's DNA left on a hat, gun slide and barrel, and the “conclusive matches” of the petitioner's blood and the victim's blood on the same jacket. Id. The Wisconsin Supreme Court denied the petitioner's petition for review under Wis.Stat. §808.10. Id. at 7.

         B. Standard

         Rule 4 of the Rules Governing §2254 Proceedings provides:

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, or to take other action the judge may order.

         A court allows a habeas petition to proceed unless it is clear that the petitioner is not entitled to relief in the district court. At the screening stage, the court expresses no view of the merits of any of the petitioner's claims. Rather, the court reviews the petition and exhibits to determine whether the petitioner has alleged that he is in custody in violation of the “Constitution or laws or treaties of the United States.” 28 U.S.C. §2254(a). If the state court denied the petition on the merits, this court can grant the petition only if the petitioner is in custody as a result of: (1) “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court;” or (2) “a decision that was based on an unreasonable application determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. §2254(d).

         The court also considers whether the petitioner filed within the limitations period, exhausted his state court remedies and avoided procedural default. Generally, a state prisoner must file his habeas petition within one year of the judgment becoming final. 28 U.S.C. §2254(d)(1)(A). In addition, a state prisoner must exhaust the remedies available in the state courts before the district court may consider the merits of his federal petition. 28 U.S.C. §2254(b)(1)(A). If the district court discovers that the petitioner has included an unexhausted claim, the petitioner ...


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