Freytes-Torres v. Foster

Filing 15

ORDER signed by Judge Lynn Adelman on 8/12/15 denying 13 Motion for Reconsideration. Further ordering that petitioners brief in support of his petition must be filed on or before October 1, 2015. Respondent has 45 days following the filing of petitioners initial brief to file a brief in opposition. Petitioner has 30 days following the filing of respondents opposition brief to file a reply brief, if any. (cc: all counsel, via USPS to petitioner) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

XAVIER FREYTES TORRES,
Petitioner,
v.

Case No. 15-C-0247

BRIAN FOSTER, Warden,
Green Bay Correctional Institution,
Respondent.

ORDER
Xavier Freytes-Torres has filed a petition pursuant to 28 U.S.C. § 2254. In a prior
order, I ordered the respondent to file a response to the petition. In that same order, I
denied Freytes-Torres’s motion to appoint counsel on the ground that he had not shown
that he had made a reasonable attempt to obtain counsel on his own. Freytes-Torres has
since filed a motion for reconsideration of my decision, arguing that he has now made a
reasonable attempt to secure counsel on his own and that he is not competent to litigate
this case himself. See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc).
Freytes-Torres’s affidavit in support of his motion for reconsideration shows that he
has in fact made a reasonable attempt to secure counsel on his own. Thus, I must assess
whether he is competent to litigate this case himself. He states that he will have difficulty
filing a brief in support of his petition because English is not his first language and he is
losing the assistance of a fellow inmate. However, along with his petition, Freytes-Torres
filed the petition for review that he filed with the Wisconsin Supreme Court. That petition
appears to contain the legal arguments that Freytes-Torres intends to make in the present
case. Because Freytes-Torres may use the petition for review as guidance when preparing

his brief in support of his habeas petition, I conclude that Freytes-Torres is competent to
litigate on his own. If after the parties file their briefs it becomes apparent that FreytesTorres is not, in fact, competent to litigate on his own, I will reconsider this ruling. However,
at this point Freytes-Torres must file a brief on his own. Because the deadline for filing that
brief is approaching, I will provide Freytes-Torres with an extension of time.
THEREFORE, IT IS ORDERED that petitioner’s motion to reconsider the denial of
his request for appointed counsel is DENIED.
IT IS FURTHER ORDERED that petitioner’s brief in support of his petition must be
filed on or before October 1, 2015. Respondent shall have 45 days following the filing of
petitioner’s initial brief within which to file a brief in opposition. Petitioner shall have 30
days following the filing of respondent’s opposition brief within which to file a reply brief, if
any.
Dated at Milwaukee, Wisconsin, this 12th day of August, 2015.

s/ Lynn Adelman
__________________________________
LYNN ADELMAN
District Judge

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