Johnson v. Ludwick
Filing
7
ORDER granting 2 MOTION for Leave to Proceed in forma pauperis and 3 MOTION to Appoint Counsel. The Clerk of Court shall arrange to collect the $5.00 filing fee from the Iowa State Penitentiary. The Clerk of Court, through the CJA Administ rator, shall appoint Mr. Johnson counsel. Clerk of Court is directed to send a copy of Petitioner's 2254 petition and brief, by certified mail, to the Respondent Nick Ludwick and the Iowa Attorney General. The Iowa Attorney General shall file a n appearance by 8/27/15. Petitioner's counsel shall file an amended petition by 9/16/15. Respondent shall have 30 days from the date Petitioner's counsel files the amended petition within which to file an answer. After Respondent's A nswer is filed, the Clerk of Court shall issue a briefing schedule. Signed by Senior Judge Donald E OBrien on 8/17/15. (copy w/nef mailed to petitioner and copy w/nef and 2254 petition sent by certified mail to respondent and to Iowa Attorney General; CJA Administrator notified) (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
JEREMIAH C. JOHNSON,
Petitioner,
No. 15-CV-3121-DEO
vs.
ORDER
NICK LUDWICK, Warden
Respondent.
____________________
On June 8, 2015, Mr. Jeremiah Johnson filed a pro se 28
U.S.C. Section 2254 petition for habeas relief in the Federal
District Court for the Southern District of Iowa.
1.
Docket No.
Mr. Johnson is currently serving a sentence of life
imprisonment in the Iowa State Penitentiary (ISP) in Ft.
Madison, Iowa, for kidnaping.
See Johnson v. State, 863
N.W.2d 36 (Table) (Iowa Ct. App. 2015). On June 10, 2015, the
Federal Court for the Southern District of Iowa transferred
Mr. Johnson’s case to the Northern District of Iowa, and the
case was assigned to the undersigned judge.
I.
Docket No. 5.
APPLICATION TO PROCEED IN FORMA PAUPERIS
The fee to file a 28 U.S.C. § 2254 petition is $5.00.
U.S.C.§ 1914(a).
28
Under Rule 3 of the Rules Governing 2254
cases, the petitioner must either pay the applicable filing
fee, or file (1) a motion for leave to proceed in forma
pauperis, (2) the affidavit required by 28 U.S.C. § 1915, and
(3) a certificate from the warden or other appropriate officer
of the place of confinement showing the amount of money or
securities that the petitioner has in any account in the
institution.
requires
Sect. 2254 Rule 3a(1)-(2).
that
a
petitioner
must
28 U.S.C. § 1915
provide
affidavit1 with the following statements:
this
Court
an
(1) statement of
the nature of the action, (2) statement that plaintiff is
entitled to redress, (3) statement of the assets plaintiff
possesses, and (4) statement that plaintiff is unable to pay
filing fees
and court costs or give security therefor.
U.S.C. § 1915(a)(1).2
requirement:
28
Prisoners must also meet an additional
they must submit a certified copy of their
prisoner trust fund account statement for a 6-month period
prior to the filing of the complaint. 28 U.S.C. § 1915(a)(2).
In this case, Mr. Johnson filed both a prisoner account
form (Docket No. 4), an affidavit and a Motion to Proceed In
1
An affidavit is a “voluntary declaration of facts
written down and sworn to by the declarant before an officer
authorized to administer oaths.” Black’s Law Dictionary (9th
ed. 2009), affidavit.
2
Entitled to redress means that the plaintiff is
entitled to relief or is entitled to a judgment in his or her
favor.
2
Forma Pauperis (Docket No. 2) that comply with the 28 U.S.C.
§ 1915
requirements.
Based on his filings, it is clear that
Mr. Johnson deserves in forma pauperis status.
Accordingly,
the Court will grant his Motion, Docket No. 2, and allow his
case to proceed without the prepayment of fees.
However, under 28 U.S.C. § 1915(b), a prisoner must pay
the full amount of the filing fee, even though in forma
pauperis status excuses him from paying other fees incident to
the civil action.
The filing fee for a 28 U.S.C. § 2254
petition is only $5.00.
28 U.S.C. § 1914(a).
Petitioner’s
6-month statement of account indicates that, although he
qualifies for in forma pauperis status, he is capable of
paying the $5.00 filing fee immediately. Therefore, the Clerk
of Court is hereby ordered to make arrangements with the Iowa
State Penitentiary to collect the $5.00 forthwith.
II.
28 U.S.C. SECTION 2254
Presently
before
the
Court
is
Mr.
Johnson’s
petition pursuant to 28 U.S.C. Section 2254.
se
Docket No. 1.
Rule 4 of the Rules Governing 2254 states that:
[t]he clerk must promptly forward the
petition to a judge under the court’s
assignment procedure, and the judge must
promptly examine it. If it plainly appears
from the petition and any attached exhibits
that the petitioner is not entitled to
3
pro
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. In every case, the clerk must serve
a copy of the petition and any order on the
respondent and on the attorney general or
other appropriate officer of the state
involved.
Sect. 2254 Rule 4.
Mr. Johnson’s state post-conviction relief action was
denied by the Iowa Court of Appeals in March 2015.
See
Johnson v. State, 863 N.W.2d 36 (Table) (Iowa Ct. App. 2015).
Mr. Johnson filed this action in June 2015.
Johnson’s claim appears to be timely.
Accordingly, Mr.
Additionally, there is
no evidence that Mr. Johnson has filed a previous 28 U.S.C. §
2254 case.
facially
counsel.
Finally, Mr. Johnson appears to have asserted
cognizable
claims
for
ineffective
assistance
of
Accordingly, the Court will allow his case to
proceed past the initial review stage.
III.
COURT APPOINTED COUNSEL
Mr. Johnson also filed an application for court appointed
counsel.
Docket No. 3.
28 U.S.C. § 2254(h) states:
Except as provided in section 408 of the
Controlled
Substances
Act,
in
all
proceedings brought under this section, and
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any subsequent proceedings on review, the
court may appoint counsel for an applicant
who is or becomes financially unable to
afford counsel, except as provided by a
rule promulgated by the Supreme Court
pursuant
to
statutory
authority.
Appointment of counsel under this section
shall be governed by section 3006A of title
18.3
The Court has considered the record in this case and
determined that the appointment of counsel is appropriate.
IV.
CONCLUSION
For the reasons set out above, both Mr. Johnson’s Motion
to Proceed In Forma Pauperis, Docket No. 2, and his Motion to
Appoint Counsel, Docket No. 3 are GRANTED.
The Clerk of Court shall arrange to collect the $5.00
filing fee from the Iowa State Penitentiary, as set out above.
Additionally,
the
Clerk
of
Court,
through
the
CJA
Administrator, shall appoint Mr. Johnson counsel and allow his
case to proceed without the prepayment of filing fees.
further ordered that:
(1)
It is
The Clerk of Court is directed to
send a copy of Petitioner Johnson’s § 2254 petition and brief,
by certified mail, to the Respondent Nick Ludwick, c/o Iowa
3
18 U.S.C.A. § 3006A(a)(2) states “[w]henever the United
States magistrate judge or the court determines that the
interests of justice so require, representation may be
provided for any financially eligible person who...is seeking
relief under section 2241, 2254, or 2255 of title 28.”
5
State Penitentiary, 3 John Bennett Drive 52627, P.O. Box 316,
Fort Madison, Iowa 52627-0316; and to the Iowa Attorney
General, c/o Habeas Division, Hoover State Office Building,
1305 E. Walnut Street, 2nd Floor, Des Moines, Iowa 50319, in
accordance with Rule 4 of the Rules Governing Section 2254
cases.
(2)
The
Attorney
General’s
Office
shall
file
an
appearance in this case within ten (10) days of the date of
this Order so that all future electronic filings are received.
(3)
Petitioner’s appointed counsel, shall have thirty
(30) days from the date of this Order to file an amended
petition.
If appointed counsel is unable to comply with this
deadline, appointed counsel shall file a motion to extend time
prior to the expiration of the deadline.
(4)
Respondent’s counsel shall have thirty (30) days
from the date Petitioner’s counsel files the amended petition
within which to file an answer or dispositive motion to the
amended petition in accordance with Rule 5 of the Rules
Governing Section 2254 cases.
If Defendant is unable to
comply with this deadline, a motion to extend time shall be
filed prior to the expiration of the deadline.
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(5)
After Respondent’s Answer is filed, the Clerk of
Court shall issue a briefing schedule.
IT IS SO ORDERED this 17th day of August, 2015.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
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NOTICE OF LAWSUIT
and REQUEST FOR
WAIVER OF SERVICE OF SUMMONS
TO THE NAMED DEFENDANT(S) IN THE FOLLOWING CAPTIONED ACTION:
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
JEREMIAH C. JOHNSON,
Petitioner,
No. 15-CV-3121-DEO
vs.
NICK LUDWICK, Warden,
Respondent.
___________________________
A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A
copy of the Petition and a copy of the corresponding order from this Court are attached. This Petition has
been filed in the United States District Court for the Northern District of Iowa.
Pursuant to Rule 4 of the Federal Rules of Civil Procedure, you have an obligation to cooperate
in saving unnecessary costs of service of summons and Petition. Please sign the enclosed document where
appropriate acknowledging receipt of the Petition and notice of this pending lawsuit and waiving formal
service of summons. After signing the enclosed document, please return it to the United States Clerk’s
8/17/15
Office in the envelope provided within thirty (30) days of this date:
.
I affirm that this notice and request for waiver of service of summons is being sent to you on behalf
of the petitioner, this August 17
, 2015.
/s/ djs, Deputy Clerk
Signature (Clerk’s Office Official)
Northern District of Iowa
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ACKNOWLEDGMENT OF RECEIPT OF
NOTICE OF LAWSUIT,
and WAIVER OF SERVICE OF SUMMONS
08/17/15
(**Return this document within thirty days after ______________________________, to the United States
Clerk’s Office in the envelope provided.)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
JEREMIAH C. JOHNSON,
Petitioner,
No. 15-CV-3121-DEO
vs.
NICK LUDWICK, Warden,
Respondent.
___________________________
I acknowledge receipt of the Petition and notice of the lawsuit in which I (or the entity on whose
behalf I am addressed) have been named a respondent. I have received and/or read the Petition
accompanying this document.
I agree to save the cost of service of a summons and an additional copy of the Petition by not
requiring that I (or the entity on whose behalf I am acting) be served with judicial process in the manner
provided by Rule 4 of the Federal Rules of Civil Procedure. I hereby waive service of summons.
I (or the entity on whose behalf I am acting) will retain all defenses or objections to the lawsuit or
to the jurisdiction or venue of the Court except for objections based on a defect in the service of summons.
I understand that a judgment may be entered against me (or the entity on whose behalf I am acting) if an
answer or motion under Rule 12 of the Federal Rules of Civil Procedure is not served within 60 days after
08/17/15
, (the date Notice, Waiver and corresponding documents were sent).
Date
Signature
Printed name
As
(Title)
of
(Entity)
9
TO:
Nick Ludwick, Warden
Iowa State Penitentiary
Fort Madison, Iowa
NOTICE OF COLLECTION OF FILING FEE
1158612
You are hereby given notice that Jeremiah C. Johnson, #______, an inmate at your facility, filed
the following lawsuit in the United States District Court for the Northern District of Iowa: Johnson v.
Ludwick, Case No. C15-3121-DEO. The inmate was granted in forma pauperis status pursuant to 28
U.S.C. § 1915(b), which requires partial payment of filing fees.
Based on the prisoner account
information, the court has assessed a filing fee of $5.00, which the inmate must pay now to the Clerk of
Court. 28 U.S.C. § 1915(b)(1). Please make the appropriate arrangements to have the $5.00 deducted
and sent to the court as directed.
/s/ djs, Deputy Clerk
______________________________
Robert Phelps
U.S. District Court Clerk
Northern District of Iowa
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Address Form
Case Number: 15-CV-3121-DEO
To:
RE:
08/17/15
Date: _____________________
Clerk of Court
Service on Named Defendants
Below, please find the known (or likely) addresses for the following
persons/entities who have been named as defendants to this action:
Defendant:
ALL DEFENDANTS
Nick Ludwick, Warden
c/o Iowa State Penitentiary
3 John Bennett Drive 52627
P.O. Box 316
Fort Madison, Iowa 52627-0316
Iowa Attorney General
c/o Habeas Division
2nd Floor-Hoover State Office Building
1305 E. Walnut Street
Des Moines, Iowa 50319
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