Davis v. Foster

Filing 7

ORDER Screening Petition, Denying Without Prejudice Petitioner's Request for Appointment of Counsel, Denying as Moot Petitoner's Motion to Proceed IFP 5 and Requiring a Response. (cc: all counsel; via US Mail to Petitioner) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEROME T. DAVIS,
Petitioner,
v.

Case No. 12-C-0680

BYRAN BARTOW,
Respondent.
ORDER SCREENING PETITION, DENYING WITHOUT PREJUDICE PETITIONER’S
REQUEST FOR APPOINTMENT OF COUNSEL, DENYING AS MOOT PETITIONER’S
MOTION TO PROCEED IN FORMA PAUPERIS AND REQUIRING A RESPONSE
On July 3, 2012, Jerome T. Davis filed a petition pursuant to 28 U.S.C. § 2254,
asserting that his state court conviction and sentence were imposed in violation of the
Constitution. Davis was convicted in Milwaukee County Circuit Court of Wisconsin and
was sentenced to 10 years of imprisonment and 8 years of extended supervision. He is
incarcerated at Kettle Moraine Correctional Institution.1
Initially, the court must consider the petition pursuant to Rule 4 of the Rules
Governing § 2254 Cases, which reads:
If it plainly appears from 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.
Rule 4, Rules Governing § 2254 Cases. The court generally reviews whether the petitioner
has set forth cognizable constitutional or federal law claims and exhausted available state
remedies.

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Petitioner’s m otion indicates that he is confined at the W isconsin Resource Center.

Davis asserts that he was provided with ineffective assistance from his trial counsel.
He claims, among other things, that his counsel failed to attend a meeting that she
coordinated. As a result, Davis allegedly met with three detectives and a district attorney
without counsel present. He also claims that his appellate counsel was ineffective because
he knew or should have known that the petitioner’s trial counsel was ineffective and
counsel failed to raise the issue or preserve petitioner’s rights. Ineffective assistance of
counsel is a constitutional ground for habeas relief under Strickland v. Washington, 466
U.S. 668 (1984). Therefore, Davis’ claims are at least colorable constitutional issues.
An application for writ of habeas corpus from a person in state custody shall not be
granted unless it appears that (a) the applicant has exhausted state remedies, or (b) there
is no available state corrective process or circumstances exist that render such process
ineffective to protect the applicant’s rights. 28 U.S.C. § 2254(b)(1). To exhaust a claim,
the petitioner must provide the state courts with a full and fair opportunity to review his
claims.

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

A specific claim is not

considered exhausted if the petitioner “has the right under the law of the State to raise, by
any available procedure, the question presented.” 28 U.S.C. § 2254(c). This requires the
petitioner to appeal adverse state court decisions all the way to the state supreme court
when doing so is part of the ordinary appellate review procedure in that state. O’Sullivan,
526 U.S. at 847. Davis appears to have exhausted his state remedies.
Davis has filed a motion for appointment of counsel. The Criminal Justice Act, 18
U.S.C. § 3006A(a)(2)(B), permits the court to appoint counsel for an indigent petitioner
seeking habeas relief under 28 U.S.C. § 2254. To do so, the court must find that the
appointment of counsel would serve “the interests of justice” and that the petitioner is
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“financially eligible.” 18 U.S.C. § 3006A(a)(2). Appointment of counsel for habeas
petitioners is within the district court’s discretion and is governed by standards similar to
those followed in civil cases with plaintiffs proceeding in forma pauperis. Wilson v.
Duckworth, 716 F.2d 415, 418 (7th Cir. 1983); Jackson v. County of McLean, 953 F.2d
1070, 1071 (7th Cir. 1992). “Due process does not require appointment of counsel for
indigent prisoners pursuing . . . federal habeas relief.” Pruitt v. Mote, 503 F.3d 647, 657
(7th Cir. 2007). Indigent civil litigants have no constitutional or statutory right to be
represented by counsel in federal court. Id. at 649.
The court may request an attorney to represent a person unable to afford counsel.
28 U.S.C. § 1915(e)(1).2 However, the decision is discretionary. Pruitt, 503 F.3d at 653;
Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992). A threshold question
is whether the litigant has attempted to obtain counsel himself or has been effectively
precluded from doing so. Pruitt, 503 F.3d at 654-55; Jackson, 953 F.2d at 1072-73.
Once the petitioner has established that his reasonable efforts to obtain counsel
were unsuccessful the court conducts “a two-fold inquiry into both the difficulty of the
plaintiff’s claims and the plaintiff’s competence to litigate those claims himself.” Pruitt, 503
F.3d at 655. The inquiries are intertwined; “the question is whether the difficulty of the
case—factually and legally—exceeds the particular [party’s] capacity as a layperson to
coherently present it to the judge or jury himself.” Id. Whether a party appears competent
to litigate his own claims, given their difficulty, includes consideration of all parts of
litigation, including evidence gathering and responding to motions. Id. Regarding the
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In form a pauperis plaintiffs “typically ask judges to ‘appoint’ counsel, and judges regularly construe
m otions seeking ‘appointm ent’ of counsel . . . as m otions seeking the court’s assistance under § 1915(e)(1)
in recruiting a volunteer.” Pruitt, 503 F.3d at 654.

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party’s ability to litigate the case, the court should review “whatever relevant evidence is
available on the question,” including pleadings and communications from the party. Id.
Davis has not met the threshold requirement of establishing that he has looked for
counsel to represent him at a reduced or no charge. Therefore, the court will deny his
motion without prejudice. After contacting at least five attorneys who handle habeas cases
or practice criminal law to no avail Davis may file another such motion, in which he should
discuss his attempt to obtain an attorney, his competency to proceed without a lawyer and
the complexity of the legal issues.
In addition, the court notes that Davis makes only a brief claim that he is
incompetent and cannot represent himself. He will need to discuss more detail in a later
motion to persuade the court that the interests of justice require that counsel be appointed.
Lastly, Davis filed a motion for leave to proceed in forma pauperis and has
submitted the $5 filing fee. Because he paid the filing fee, his request to proceed in forma
pauperis is moot. Therefore,
IT IS ORDERED that within sixty days of the date of this order respondent must file
an answer, motion, or other appropriate response to the petition.
An answer must comply with Rule 5 of the Rules Governing § 2254 Cases, and
show cause, if any, why the writ should not issue. If respondent files an answer, petitioner
shall have forty-five days from receipt of the answer to file a brief in support, respondent
may file an opposition brief within forty-five days of receipt of petitioner’s brief, and
petitioner shall have thirty days within which to file a reply, if any.

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If the respondent files a motion to dismiss, the motion must be accompanied by a
brief in support and other relevant materials. The time for response by petitioner and reply
by respondent shall be governed by this district’s local rules.
Principal briefs may not exceed thirty pages; reply briefs may not exceed fifteen
pages.
IT IS FURTHER ORDERED that Davis’ request for appointment of counsel is denied
without prejudice.
IT IS FURTHER ORDERED that Davis’ request for leave to proceed in forma
pauperis is denied as moot.
Pursuant to a Memorandum of Understanding between the Attorney General and
this court, copies of the petition and this order are being sent today to the Attorney General
for the State of Wisconsin for service upon the respondent.
Dated at Milwaukee, Wisconsin, this 29th day of August, 2012.
BY THE COURT

/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
CHIEF U. S. DISTRICT JUDGE

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