Anderson v. Hepp

Filing 14

ORDER signed by Judge Lynn Adelman on 8/31/15 denying 11 Motion to Appoint Counsel; granting 12 Motion for Leave to Proceed in forma pauperis. Further ordering that petitioners brief in support of his petition is due October 15, 2015; Respondent's opposing brief is due 45 days following the filing of petitioners initial brief; Petitioner's reply, if any, due 30 days following the filing of respondents opposition brief. (cc: all counsel, via USPS to petitioner) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JUSTIN ANDERSON,
Petitioner,
v.

Case No. 15-C-0355

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

ORDER
Justin Anderson has filed a petition pursuant to 28 U.S.C. § 2254. Recently, he filed
a motion for appointment of counsel and a motion for leave to proceed in forma pauperis.
Because it is clear that Anderson meets the requirements of 28 U.S.C. § 1915(a)(1), I will
grant the motion for leave to proceed in forma pauperis.
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).
Here, Anderson has demonstrated that he has made a reasonable attempt to obtain
counsel on his own. However, I conclude that Anderson has not shown that he is not
competent to litigate this case himself. Anderson has been receiving assistance from an

inmate at a different Wisconsin correctional institution. In his motion, Anderson states that
Fox Lake Correctional Institution has interfered with his ability to communicate with that
inmate. However, Anderson also states that he filed an inmate grievance over that issue
and has since been able to communicate with the inmate who has been assisting him.
(Mot. for Counsel at 9.) Thus, at this point, it appears that Anderson will be able to
continue obtaining assistance from the inmate. In any event, even if Anderson cannot
obtain further assistance, his filings so far contain the legal arguments that he intends to
make. Because Anderson may use those filings as guidance when preparing his brief in
support of his habeas petition, I conclude that he is competent to litigate on his own. If
after the parties file their briefs it becomes apparent that Anderson is not, in fact,
competent to litigate on his own, I will reconsider this ruling. However, at this point
Anderson must file a brief on his own, or with the assistance of the other inmate, if he can
obtain it. Because the deadline for filing that brief has passed, I will provide Anderson with
an extension of time
THEREFORE, IT IS ORDERED that petitioner’s motion to proceed in forma
pauperis is GRANTED.
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel is
DENIED.
FINALLY, IT IS ORDERED that petitioner’s brief in support of his petition must be
filed on or before October 15, 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

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days following the filing of respondent’s opposition brief within which to file a reply brief, if
any.
Dated at Milwaukee, Wisconsin, this 31st day of August, 2015.

s/ Lynn Adelman
__________________________________
LYNN ADELMAN
District Judge

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