United States District Court, E.D. Wisconsin
DERRICK D. BROWN, Petitioner,
WILLIAM POLLARD, Respondent.
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)
Pamela Pepper Chief United States District Judge.
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.
Motion to Proceed without Paying the Filing Fee (Dkt. No.
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.
Rule 4 Screening
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.
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.
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.
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
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