Freytes-Torres v. Foster

Filing 7

ORDER signed by Judge Lynn Adelman on 3/27/15 that within 60 days of the date of this order respondent either answer the petition or file a dispositive motion. Further ordering that petitioners motion for appointment of counsel is DENIED. Further ordering the parties to abide by the schedule regarding the filing of briefs on the merits of petitioners claims set forth in the order. (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, asserting
that his state court conviction and sentence were imposed in violation of the Constitution.
Pursuant to Rule 4 of the Rules Governing § 2254 Cases, I must give the case prompt
initial consideration.
If it plainly appears from the face of 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. Having reviewed the petition, I conclude that it
does not plainly appear that the petitioner is not entitled to relief in the district court.
Accordingly, respondent will be ordered to file a response to the petition.
Petitioner has filed a motion for appointment of counsel. 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).
In his motion to appoint counsel, petitioner does not demonstrate that he has made a
reasonable attempt to obtain counsel on his own. For that reason, his motion will be
denied.
THEREFORE, IT IS ORDERED that within 60 days of the date of this order
respondent either answer the petition, complying with Rule 5 of the Rules Governing
§ 2254 Cases, or file a dispositive motion.
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel is
DENIED.
IT IS FURTHER ORDERED that the parties shall abide by the following schedule
regarding the filing of briefs on the merits of petitioner’s claims: (1) petitioner shall have 45
days following the filing of respondent’s answer within which to file his brief in support of
his petition; (2) respondent shall have 45 days following the filing of petitioner’s initial brief
within which to file a brief in opposition; and (3) petitioner shall have 30 days following the
filing of respondent’s opposition brief within which to file a reply brief, if any.
In the event that respondent files a dispositive motion and supporting brief in lieu
of an answer, this briefing schedule will be suspended and the briefing schedule will be as
follows: (1) petitioner shall have 45 days following the filing of respondent’s dispositive
motion and supporting initial brief within which to file a brief in opposition; and

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(2) respondent shall have 30 days following the filing of petitioner’s opposition brief within
which to file a reply brief, if any.
Pursuant to Civil L.R. 7(f), the following page limitations apply: briefs in support of
or in opposition to the habeas petition or a dispositive motion filed by respondent must not
exceed 30 pages and reply briefs must not exceed 15 pages, not counting any statements
of facts, exhibits, and affidavits.
Petitioner is advised that he must send copies of all future filings with the court to
counsel for respondent, no matter whether in letter, brief, memorandum, or other form.
Pursuant to the 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 27th day of March, 2015.

s/ Lynn Adelman
__________________________________
LYNN ADELMAN
District Judge

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