Reyes-Sanchez v. Kingston

Filing 9

ORDER signed by Judge Rudolph T Randa on October 6, 2005. The stay of this action is LIFTED; Ground three of the petition is DISMISSED; The Clerk of Court SHALL serve a copy of Reyes-Sanchez's petition upon McCaughtry; McCaughtry SHALL file an a nswer to grounds one and two of the petition no later than November 10, 2005; Such answer SHALL conform to the requirements of Rule 5 of the Rules Governing Section 2254 Cases in the United States District Court. Reyes-Sanchez's motion for appointment of counsel is DENIED without prejudice. (cc: via US Mail to Zeferino w/IFP form)(Randa, Rudolph)

Reyes-Sanchez v. Kingston

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Case 2:04-cv-01021-WEC

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Z E F E R I N O REYES-SANCHEZ, P e titio n e r , vs. G A R Y R. MCCAUGHTRY, W a r d e n of Waupun Correctional Institution, R esp o n d en t. C a s e No. 04-C-1021

DECISION AND ORDER

O n October 19, 2004, the pro se petitioner Zeferino Reyes-Sanchez ("ReyesS a n c h e z" ), incarcerated at the Waupun Correctional Institution ("WCI") pursuant to a 180-year s e n te n c e (120-years of incarceration, followed by 60 years of extended supervision) imposed by th e Circuit Court of Milwaukee County, Wisconsin for party to the crime of first degree sexual a ss a u lt and kidnaping, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, a g a in s t the respondent WCI Warden, Gary R. McCaughtry ("McCaughtry").1 He also filed a m o tio n for appointment of counsel.

By his petition, Reyes-Sanchez challenges the judgment of conviction on the grounds that: (1) he had ineffective a s s i s t a n c e of trial counsel, (2) his conviction was obtained by the use of a coerced confession, and (3) the Milwaukee County C ir c u it Court had no jurisdiction to convict and to sentence him. Reyes-Sanchez states that he is a Mexican National. The g r o u n d s he asserts involve the Article 36 of the Vienna Convention. See Vienna Convention on Consular Relations, April 24, 1 9 6 3 , art. 36, 21 U.S.T. (providing that authorities shall inform an arrested individual "without delay" of his right to c o m m u n ic a t e with the consular post of his home country).

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H a v in g reviewed the petition pursuant to Rule Four of the Rules Governing Section 2 2 5 4 Cases in the United States District Courts, in an October 25, 2005, decision and order, the C o u r t determined that Reyes-Sanchez is "in custody" pursuant to the conviction he challenges a n d his contentions raise claims of violations of Constitution and/or a treaty of the United States. H o w e v e r, the Court also considered § 2254(b)'s requirement that "[a]n application for a writ of h a b e as corpus . . . shall not be granted unless it appears that the applicant has exhausted the re m e d ie s available in the courts of the State . . . or the existence of circumstances rendering such p r o c e s s ineffective to protect the rights of the prisoner," and determined that, although ReyesS a n c h e z had apparently exhausted his state remedies as to grounds one and two (ineffective a s sis ta n c e of counsel and his conviction was obtained by a violation of his right against s e lf -in c rim in a tio n ), there was no indication that Reyes-Sanchez had presented ground three to the W isc o n sin courts. Determining that Reyes-Sanchez might be able to raise the unexhausted claim o f ground three before the Wisconsin courts and to ensure that Reyes-Sanchez's petition would n o t be barred by the one-year rule of 28 U.S.C. § 2244(d)(1)(a), this Court stayed the action until R e ye s-S a n c h e z informed the Court that he had exhausted ground three or that he did not intend to proceed with that ground and requested dismissal of that ground. See Freeman v. Page, 208 F .3 d 572, 577 (7th Cir. 2000). By recent letter, Reyes-Sanchez advises that he was denied counsel on ground three (v io la tio n of Article 36 of the Vienna Convention by the Milwaukee County Circuit Court had n o jurisdiction to convict and to sentence Reyes-Sanchez), and he requests that the Court allow h im to proceed on grounds one and two of his petition: ineffective assistance of trial counsel, and

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h i s conviction was obtained by the use of a coerced confession. The Court construes ReyesS a n c h e z's statement as a request to dismiss ground three ­ the unexhausted ground. Therefore, g r o u n d three is dismissed. McCaughtry shall file an answer to grounds one and two of ReyesS a n c h e z's petition by November 10, 2005. R e ye s-S a n c h e z also seeks appointment of counsel. A threshold requirement is that R e ye s-S a n c h e z demonstrate that he is unable to retain counsel on his own. Toward that end, any c iv il litigant who requests appointment of counsel must submit financial information to the Court. If Reyes-Sanchez intends to pursue his request for court-appointed counsel, he must complete and f ile the enclosed form "Application to Proceed Without Prepayment of Fees and Affidavit." Further, there is no right to counsel in a federal habeas corpus proceeding. Wright v . West, 505 U.S. 277, 293 (1992); Pennsylvania v. Finley, 481 U.S. 551, 556 (1987). Appointing counsel for pro se petitioners in habeas corpus cases is a power commended to the d is c re tio n of the district court in all but the most extraordinary circumstances. Winsett v. W a s h in g to n , 130 F.3d 269, 281 (7th Cir. 1997) (quoting 18 U.S.C. § 3006A(a)(2)(B) ("Whenever . . . the court determines that the interests of justice so require, representation may be provided f o r any financially eligible person who . . . is seeking relief under section . . . 2254 . . . of title 2 8 ." ) . The court of appeals reviews the district court's refusal to appoint counsel, under an abuse o f discretion standard and will reverse only if, given the difficulty of the case and the litigant's a b ility, the petitioner could not obtain justice without an attorney, he could not obtain a lawyer o n his own, and he would have had a reasonable chance of winning with a lawyer at his side.

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W in se tt, 130 F.3d at 281. At this juncture, the criteria for appointment of counsel under § 3006A h a v e not been satisfied. C oun sel may also be appointed in a habeas corpus proceeding pursuant to 28 U.S.C. § 1915(d). Here, Reyes-Sanchez has not demonstrated that he is entitled to appointment of c o u n se l under that statute. The first hurdle for appointment of counsel is indigency. Section 1 9 1 5 (d ) also requires a threshold inquiry into the indigent's efforts to secure counsel. Jackson v . County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992). This requires the indigent to disclose th e names of attorneys, law firms, or legal services agencies he has contacted in an effort to s e c u re representation and the dates of the contacts. Reyes-Sanchez's motion for appointment of c o u n s e l does not include such information. Additionally, at this juncture of the proceedings, b a se d on Reyes-Sanchez's submissions, it appears that he is competent to litigate his motion u n d e r § 2254 with the available resources and that the presence of counsel will not be outcome d e te rm in a tiv e . See Farmer v. Hass, 990 F.2d 319, 322 (7th Cir. 1993). Therefore, ReyesS a n c h e z 's motion for appointment of counsel is denied without prejudice. NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: T h e stay of this action is LIFTED; Ground three of the petition is DISMISSED; T h e Clerk of Court SHALL serve a copy of Reyes-Sanchez's petition upon M cC au g h try; M cC au g h try SHALL file an answer to grounds one and two of the petition no later th a n November 10, 2005;

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S u ch answer SHALL conform to the requirements of Rule 5 of the Rules G o v e rn in g Section 2254 Cases in the United States District Court. Reyes-Sanchez's motion for appointment of counsel is DENIED without p re ju d ic e . Dated at Milwaukee, Wisconsin this 6th day of October, 2005. BY THE COURT s / Rudolph T. Randa H o n . Rudolph T. Randa C h ie f Judge

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