Hanson v. Clements

Filing 27

ORDER signed by Judge Lynn Adelman on 11/25/13 denying 9 Motion to Consolidate Cases; denying without prejudice 13 Motion to Appoint Counsel; denying 19 Motion to Amend/Correct; denying 21 Motion for Leave to Proceed in forma pauperis; denying 26 Motion for Default Judgment. (cc: all counsel, via USPS to petitioner) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DANIEL L. HANSON,
Petitioner,
v.

Case No. 13-CV-00896

MARC CLEMENTS, Warden,
Fox Lake Correctional Institution,
Respondent.

DECISION AND ORDER
Daniel Hanson, proceeding pro se, filed this petition pursuant to 28 U.S.C. § 2254,
asserting that his state court conviction and sentence were imposed in violation of the
Constitution. On May 6, 2009, petitioner was convicted in Marinette County Circuit Court
of operating while under the influence under Wis. Stat. § 346.63(1)(a), battery to an
emergency rescue worker under Wis. Stat. § 940.20(7)(b), and disorderly conduct under
Wis. Stat. § 947.01. He was sentenced to eight years initial confinement followed by eight
years supervised release and is currently incarcerated at Fox Lake Correctional Institution.
I screened the petition under Rule 4 of the Rules Governing § 2254 Cases and ordered
respondent to answer the petition. Before me are several motions from petitioner.
First, petitioner moves to proceed in forma pauperis. I will deny this motion as moot
because petitioner has already paid the $5.00 filing fee. Second, petitioner moves for entry
of default against respondent because respondent did not file his answer by the November
13, 2013 deadline set by the court. I will deny this motion because respondent filed a timely

motion to dismiss and motion to stay the time for filing his answer. Thus, he has not
defaulted.
Third, petitioner moves to consolidate this case with Hanson v. Clements, Case No.
13-CV-01145 (E.D. Wis.). In that case, petitioner also seeks a writ of habeas corpus, but
he is challenging a different conviction for operating while under the influence from 2006.
Federal Rule of Civil Procedure 42(a) gives me the discretion to consolidate cases that
“involve a common question of law or fact.” There are no such questions in the cases
petitioner seeks to consolidate. Petitioner’s habeas petitioners challenge two different
convictions that are based on two different crimes that occurred on two different dates.
Thus, they do not raise common questions of law or fact.
Fourth, petitioner asks the court to appoint counsel to represent him. 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). When confronted with
a request for counsel in a civil case, the district court must make the following inquiries: (1)
has the indigent party made a reasonable attempt to obtain counsel or been effectively
precluded from doing so; if so, (2) given the difficulty of the case, does the indigent party
appear competent to litigate it himself? Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007)
(en banc). With regard to the second inquiry, the court must examine “whether the difficulty
of the case—factually and legally—exceeds the particular plaintiff’s capacity as a layperson
to coherently present it.” Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt,
503 F.3d at 655). This inquiry focuses not only on the plaintiff’s ability to try his case, but

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also includes other “tasks that normally attend litigation” such as “evidence gathering” and
“preparing and responding to motions.” Id.
Here, petitioner’s efforts to obtain legal counsel on his own have been unsuccessful.
Nonetheless, the issues in this case appear at this stage to be straightforward. Respondent
has filed a motion to dismiss on the ground that petitioner failed to timely file his petition
and that he failed to exhaust his remedies in state court. Petitioner’s filings indicate that he
is capable of litigating these issues on his own. His briefs so far have been clearly written
and he indicated to the court that he was aware there might be a timeliness problem with
his petition even before respondent filed the motion to dismiss. Accordingly, I will deny the
request for appointment of counsel without prejudice.
Finally, petitioner has filed a motion to amend or correct his filings. I will deny this
motion because it is not clear what filing he wishes to amend or correct.
THEREFORE, IT IS ORDERED that petitioner’s motion to consolidate (Docket #9)
is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion to appoint counsel (Docket #13)
is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that petitioner’s motion to amend/correct (Docket #19)
is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for leave to proceed in forma
pauperis (Docket #21) is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for default judgment (Docket
#26) is DENIED.

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Dated at Milwaukee, Wisconsin, this 25th day of November, 2013.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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