Marion v. Grams

Filing 7

ORDER signed by Judge Rudolph T Randa on 10/26/2010 denying as moot 2 Motion for Leave to Proceed in forma pauperis. The Clerk of Court is DIRECTED to electronically file the attachments to the petition that was filed as Docket No. 1 in Marion v. Grams, No. 10-C-568 (E.D. Wis.), in this action. Grams MUST file an answer to the petition on or before 12/17/2010. Marions request for appointment of counsel (Docket No. 6) is DENIED. The Clerk of Court is DIRECTED to enclose a copy of the District's form Petition and Affidavit to Proceed Without Prepayment of Fees and/or Costs Before District Court or on Appeal, with Marions copy of this Decision and Order. (cc: via US Mail w/IFP form) (Koll, J)

M a r i o n v. Grams

Doc. 7

U N IT E D STATES DISTRICT COURT E A S T E R N DISTRICT OF WISCONSIN

W A R N. MARION, P e titio n e r , -v G R E G O R Y GRAMS, R esp o n d en t. C a s e No. 10-C-860

D E C I S I O N AND ORDER

T h e pro se Petitioner, War N. Marion ("Marion"), has filed a petition for a writ of h ab ea s corpus pursuant to 28 U.S.C. § 2254.1 The matter is now before the Court for preliminary re v ie w pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States District C o u rts. Rule 4 provides that upon preliminary consideration by the district court judge, "[i]f it p lain ly appears from the petition and any attached exhibits that the petitioner is not entitled to re lie f in the district court, the judge must dismiss the petition and direct the clerk to notify the p e titio n e r." Marion requests that the Court consider the brief and attachments to the petition

Marion also filed a W is c o n s in Circuit Court form "Petitioner's Petition for Waiver of Prepayment of Fees and C o s ts -A ffid a v i t of Indigency." Marion has not used this District's form. Moreover, his request is denied as moot since he h a s paid the fee for filing this action.

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f o r a writ of habeas corpus that he filed in Marion v. Grams, No. 10-C-568 (E.D. Wis.) (the "10C -5 6 8 action").2 The Court has done so and will direct the Clerk of Court to electronically file in this action the attachments to Docket No. 1 that were filed in the 10-C-568 action. Title 28 of the United States Code § 2254 provides that "a district court shall e n ter tain an application for a writ of habeas corpus in behalf of a person in custody pursuant to th e judgment of a State court only on the ground that he is in custody in violation of the C o n s titu tio n or laws or treaties of the United States." Marion challenges his May 18, 2001, c o n v i c tio n by the Circuit Court for Milwaukee County, Wisconsin, for second degree reckless h o m ic id e . He is serving an aggregate sentence of 20 years, comprised of 12 years of

im p ris o n m e n t and eight years of extended supervision. L ib e ra lly construed, having also taken into account Marion's brief and attachments o rig in a lly filed in the 10-C-568 action, Marion arguably sets forth four grounds: (1) trial counsel w a s ineffective because counsel coerced him into pleading guilty with promises of ten years total; (2 ) coerced confessions were used as evidence at sentencing; (3) his conviction was obtained in v io la tio n of double jeopardy; and (4) the plea proceeding was deficient. Although ground three re f ers to double jeopardy, Marion's statement of supporting facts for the ground claims that he w a s tricked into pleading guilty by trial counsel and the prosecutor. Based on the foregoing, Marion's petition sets forth four grounds that challenge the

On August 24, 2010, the 10-C-568 action was dismissed for failure to exhaust state remedies. Dismissal for f a i l u r e to exhaust does not make the instant petition a successive petition. See Slack v. McDaniel, 529 U.S. 473, 486-87 ( 2 0 0 0 ) . Therefore, the Court proceeds with its consideration of the petition.

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le g a lity of his custody as being in violation of the Constitution of the United States. Claims are exhausted when they have been presented to the highest state court for a ruling on the merits or when state remedies no longer remain available to the petitioner. Engle v . Isaac, 456 U.S. 107, 125 n.28 (1982). Before a federal court may consider the merits of a p e titio n e r's claims, the petitioner must give the state's highest court an opportunity to review e a c h claim where such review is "a normal, simple, and established part of the State's appellate r e v i e w process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This means that in W isco n s in , state prisoners who wish to have their constitutional claims heard in federal court m u s t first present the operative facts and controlling legal principles of those claims to the W is c o n s in Court of Appeals and then to the Wisconsin Supreme Court. Moore v. Casperson, 345 F .3 d 474, 486 (7th Cir. 2003). In his petition, Marion states that he presented the four grounds to appellate c o u n se l but she stated that the grounds were waived due to his guilty plea had been raised in m u ltip le § 974.06 motions with briefs and in his state habeas petition. Nonetheless, having e x a m in e d the attachments filed in the 10-C-568 action, the Court is able to determine that the W is c o n s in Court of Appeals addressed the adequacy of the plea colloquy. See Wisconsin v. M a r io n , No. 01-3117-CRNM (Wis. Ct. App. Apr. 22, 2002). According to the Wisconsin state c o u rt records, Marion did not file a petition for review of that determination by the Wisconsin S uprem e Court. See http://wscca.wicourts.gov (last visited Oct. 22, 2010). However, any attempt to obtain review of that determination by the Wisconsin Supreme Court would be futile at this

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d a te . The attachments filed in the 10-C-568 action also indicate that, thereafter, Marion f ile d three petitions for post-conviction review. Those petitions were summarily denied on June 1 3 , 2002, July 30, 2002, and July 30, 2003. Subsequently, Marion filed a state petition for a writ of habeas corpus,3 pursuant to State v. Knight, 484 N.W. 2d 540 (Wis. 1992), with the Wisconsin Court of Appeals. That p e titio n was denied on May 17, 2010, and the Wisconsin Supreme Court denied Marion's petition f o r review on September 21, 2010. Based on the submissions before the Court, it is unclear w h e th e r Marion has exhausted his state remedies as to all of his claims. However, at this juncture, summary dismissal under Rule 4, Rules Governing H a b e as Corpus Cases, is not appropriate since it does not plainly appear from "the face of the p e t itio n " that Marion is not entitled to the relief sought by his petition for a writ of habeas corpus. C o n s e q u e n tly, Respondent Gregory Grams ("Grams") will be called upon to serve and file an a n sw e r to Marion's petition for a writ of habeas corpus. The answer must contain the

in f o rm a tio n called for by Rule 5, Rules Governing Section 2254 Cases in the United States D is tr ic t Courts. M a rio n also filed a request for appointment of counsel. In that regard, Marion is

A report dated October 16, 2009, of the W i s c o n s i n Public Defender to the W i s c o n s i n Court of Appeals r e g a r d i n g the appointment of counsel in No. 2009AP002365-W , indicates that the issues raised by Marion's petition for a w r it of habeas corpus included claims that (1) trial counsel was ineffective because counsel coerced him into pleading g u ilty by telling him that the judge had secretly promised a certain result upon Marion's acceptance of a plea bargain; (2) c o e r c e d confession; and (3) the plea proceeding was deficient. The report is included in the attachment filed in the 10-C-568 action.

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a d v is e d that there is no right to counsel in a federal habeas corpus proceeding. Wright v. West, 5 0 5 U.S. 277, 293 (1992); Pennsylvania v. Finley, 481 U.S. 551, 556 (1987); Pruitt v. Mote, 503 F .3 d 647, 657 (7th Cir. 2007). If a petitioner qualifies under 18 U.S.C. § 3006A(b), counsel shall b e appointed, if necessary, for effective utilization of discovery procedures, if an evidentiary h e a rin g is required, or if the interests of justice so require. See Rules 6(a) & 8(c), Rules G o v e rn in g Section 2254 Cases in the United States District Courts. "Appointing counsel for pro se petitioners in habeas corpus cases is a power c o m m e n d e d to the discretion of the district court in all but the most extraordinary circumstances." W in s e tt v. Washington, 130 F.3d 269, 281 (7th Cir. 1997) (quoting 18 U.S.C. § 3006A(a)(2)(B) (" W h e n e v er . . . the court determines that the interests of justice so require, representation may b e provided for any financially eligible person who . . . is seeking relief under section 2241, 2254, o r 2255 of title 28.")). In Winsett, the court of appeals applied the then current multi-step s ta n d a rd for evaluating a motion for appointment of counsel under the federal in forma pauperis s ta tu te , 28 U.S.C. § 1915(d).

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P ru itt, 503 F.3d at 655, revisited that standard and clarified the second step.4 H o w ev er, the court did not change the threshold inquiry; that is, a district court "must" ask before ru lin g on a motion for appointment of counsel has the indigent plaintiff made a reasonable a tte m p t to obtain counsel or has he been effectively precluded from so doing? Marion's request f o r counsel does not contain any indication that he made any attempt to obtain counsel or that he is effectively precluded from doing so. Since Marion has not satisfied the threshold requirement f o r appointment of counsel, the request is denied. If Marion wants to further pursue appointment of counsel he should also complete this District's Petition and Affidavit to Proceed Without Prepayment of Fees and/or Costs Before D is tric t Court or on Appeal. The Court will direct the Clerk of Court to enclose a copy of the

fo rm with Marion's copy of this Decision and Order.

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The court explained: T h e decision whether to recruit pro bono counsel is grounded in a two-fold inquiry i n t o both the difficulty of the plaintiff's claims and the plaintiff's competence to l i ti g a t e those claims himself. The inquiries are necessarily intertwined; the difficulty o f the case is considered against the plaintiff's litigation capabilities, and those c a p a b ilitie s are examined in light of the challenges specific to the case at hand. The q u e s tio n is not whether a lawyer would present the case more effectively than the pro s e plaintiff; "if that were the test, `district judges would be required to request counsel fo r every indigent litigant.'" Johnson [v. Doughty], 433 F.3d [1001] at 1006 [7th Cir. 2 0 0 6 ] (citing Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997) (quoting Farmer v. H a a s , 990 F.2d [319] at 323 [7th Cir. 1993]). Rather, the question is whether the d i ffic u lty of the case-factually and legally- exceeds the particular plaintiff's capacity as a layperson to coherently present it to the judge or jury himself.

Pruitt, 503 F.3d at 654-55 (footnote omitted).

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NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: Marion's request to proceed without prepayment of fees and costs is DENIED as m o o t. The Clerk of Court is DIRECTED to electronically file the attachments to the p e titio n that was filed as Docket No. 1 in Marion v. Grams, No. 10-C-568 (E.D. Wis.), in this a c tio n . Grams MUST file an answer to the petition on or before December 17, 2010. Such answer MUST comply with the requirements of Rule 5 of the Rules G o v e r n in g Section 2254 Cases in the United States District Courts. M a r io n ' s request for appointment of counsel (Docket No. 6) is DENIED. T h e Clerk of Court is DIRECTED to enclose a copy of the District's form Petition a n d Affidavit to Proceed Without Prepayment of Fees and/or Costs Before District Court or on A p p e a l, with Marion's copy of this Decision and Order. Dated at Milwaukee, Wisconsin, this 26th day of October, 2010. BY THE COURT s/ Rudolph T. Randa HON. RUDOLPH T. RANDA U.S. District Judge

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