Graham v. Hepp

Filing 5

ORDER signed by Judge Rudolph T. Randa on 4/9/2015. By 6/10/2015 Respondent to file answer, motion, or other responsive pleading. By 5/15/2015 Petitioner to file petition and affidavit to proceed without prepayment of fees and/or costs. (cc: all counsel, via US mail to Roland Graham at Fox Lake Correctional Institution-with petition)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROLAND DERLIEL GRAHAM.
Petitioner,
-vs-

Case No. 15-C-333

RANDALL R. HEPP,
Warden, Fox Lake Correctional Institution,
Respondent.

DECISION AND ORDER
Pro se Petitioner Roland Derliel Graham (“Graham”), who is in state
custody having been convicted of the possession with intent to deliver a
controlled substance, tetrahydrocannabinol, as a party to a crime, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254, and paid
the filing fee. Thus, this matter is before the Court for preliminary review
pursuant to Rule 4 of the Rules Governing § 2254 Cases in the District
Courts.
Graham’s petition raises two grounds: the state courts erroneously
applied Fourth Amendment law in affirming the denial of his motion to
suppress; and his right to a fair trial was violated with the use of the
phrase “the defendants or another” in jury instructions regarding the
elements of possession with intent to deliver as party to a crime, and the

judge’s response to a question from the jury regarding that phrase.
Graham’s Fourth Amendment claim raises an issue under Stone v.
Powell, 428 U.S. 465, 494 (1976), which bars a federal habeas court from
“reaching the merits of a petitioner’s Fourth Amendment claim so long as
the state court granted him a full and fair hearing on the claim.” Monroe
v. Davis, 712 F.3d 1106, 1112-13 (7th Cir. 2013). However, from Graham’s
petition, it does not plainly appear that he is not entitled to relief. See R. 4
Governing § 2254 Cases Dist. Cts. Therefore, Respondent Randall P. Hepp
(“Hepp”) will be required to file an answer, motion or other response to the
instant petition, which must contain the materials required by Rule 5 of
the Rules Governing § 2254 Cases in the District Courts.
Graham also seeks appointment of counsel, indicating that in
preparing his papers he was assisted by jail house paralegal Tyrone Davis
Smith (“Smith”), Graham is “100% incompetent and unknowledgeable of
the law,” Smith cannot “represent” him throughout these proceedings, and
he has contacted three attorneys regarding representation and has
received no response to date.
The Court needs additional information to evaluate Graham’s
motion for appointment for counsel. He should provide information
regarding his abilities to read and write, his highest level of formal
-2-

education, whether he completed high school or has a general education
development (“GED”) certificate, and any classes that he has taken while
incarcerated. He should also indicate when he contacted the three
attorneys regarding representation. Furthermore, Graham must complete
and file a petition and affidavit to proceed without prepayment of fees
and/or costs by the stated deadline. A copy of the form is enclosed with
Graham’s copy of this Decision and Order.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
On or before June 10, 2015, Hepp MUST FILE an answer,
motion or other response to the instant petition; and
On or before May 15, 2015, Graham MUST FILE the enclosed
petition and affidavit to proceed without prepayment of fees and/or costs.
Dated at Milwaukee, Wisconsin, this 9th day of April, 2015.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

-3-