Froust v. Schaub

Filing 7

ORDER signed by Judge Pamela Pepper on 12/7/2015 DENYING WITHOUT PREJUDICE 4 Motion to Appoint Counsel ; DENYING AS MOOT 5 Motion for Leave to Proceed in forma pauperis; SCREENING the petition, and ORDERING the respondent to answer or otherwise respond within 60 days of the date of this order. (cc: all counsel; by US Mail to petitioner and warden at Taycheedah CI) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARY ANN FROUST,

Case No. 15-cv-1098-pp

Petitioner,
v.
DEANNE SCHAUB.
Respondent.

ORDER DENYING AS MOOT MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS (DKT. NO. 5), DENYING WITHOUT PREJUDICE MOTION FOR
APPOINTMENT OF COUNSEL (DKT. NO. 4), SCREENING §2254 HABEAS
CORPUS PETITION, AND ORDERING THE RESPONDENT TO ANSWER OR
OTHERWISE RESPOND

On September 8, 2015, Mary Ann Froust filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. §2254. Dkt. No. 1. She also paid the
$5.00 filing fee. The petitioner was charged with first-degree attempted
intentional homicide for stabbing a person who sexually assaulted her, and she
pleaded not guilty by reason of mental disease or defect. At the guilt phase of
the bifurcated trial, the jury found her guilty of one count of first-degree
reckless injury. At the responsibility phase of the trial, the state trial court
directed a verdict in favor of the state after the petitioner presented her case-inchief. Although the petitioner set forth two separate grounds for relief in her
petition, the court finds that they amount to the same claim—that the trial
court erred by directing a verdict for the state, because she provided sufficient
evidence from which the jury could have found that she lacked the mental
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capacity to understand the wrongfulness of her conduct or to conform her
conduct to the law. She seeks a new trial by jury. Id. at 12. She also asks the
court to allow her to proceed in forma pauperis and to appoint counsel to
represent her in this case. Dkt. Nos. 4, 5.
I.

The Court Denies As Moot The Petitioner’s Motion To Proceed In
Forma Pauperis.
On September 24, 2015, the petitioner filed an application asking the

court to allow her to proceed without paying the filing fee. Dkt. No. 5. The
petitioner already has paid the $5.00 filing fee associated with a petition for a
writ of habeas corpus, so the court will deny as moot her motion for leave to
proceed in forma pauperis.
II.
The Court Denies Without Prejudice The Petitioner’s Motion For
Appointment Of Counsel.
On the same date, the petitioner filed a motion asking the court to
appoint counsel to represent her. Dkt. No. 4. The Criminal Justice Act allows a
court to appoint counsel for a person seeking relief under §2254 if “the court
determines that the interests of justice so require” and if the person is
“financially eligible.” 18 U.S.C. §3006A(a)(2). Appointment of counsel for habeas
petitioners is within the district court's discretion, and is governed by
standards similar to those followed with plaintiffs proceeding in forma pauperis
in civil cases. Wilson v. Duckworth, 716 F.2d 415, 418 (7th Cir. 1983); Jackson
v. Cnty. of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992). The Seventh Circuit
has found that “due process does not require appointment of counsel for
indigent prisoners pursuing state postconviction remedies or federal habeas
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relief.” Pruitt v. Mote, 503 F.3d 647, 657 (7th Cir. 2007). While “an indigent
civil litigant may ask the district court to request an attorney to represent him
pro bono publico,” “no constitutional or statutory right to court-appointed
counsel” exists “in federal civil litigation.” Id. at 649.
The court can conclude from the information the petitioner supplied in
her affidavit of financial circumstances that the petitioner does not have the
means to afford counsel to represent her in this case, so she is indigent for the
purposes of her request for appointment of counsel. Because many people who
file habeas cases cannot afford lawyers, however, and because the court does
not have the resources to appoint lawyers for all of them, the court must
consider other factors.
To determine whether it will appoint counsel in a habeas case, the court
asks: “(1) has the indigent plaintiff made a reasonable attempt to obtain
counsel or been effectively precluded from doing so; and if so, (2) given the
difficulty of the case, does the plaintiff appear competent to litigate herself?” Id.
at 654. The Seventh Circuit has not explicitly defined “reasonable attempt to
obtain counsel.” It has affirmed one court’s requirement that the petitioner
provide the names and addresses of at least three attorneys that the petitioner
reached out to and who turned down the case. Romanelli v. Suilene, 615 F.3d
847, 852 (7th Cir. 2010). The court finds that the petitioner has made a
reasonable effort to obtain counsel; she attached to her motion a letter from
one lawyer she had contacted, and made a hand-written notation at the bottom
of the letter naming two other lawyers whom she’d contacted, but who’d not
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responded to her. The court finds that the petitioner satisfied the first Pruitt
requirement.
The court next must determine whether the second Pruitt requirement is
satisfied—is the case so complex that the petitioner is not competent to handle
it herself? In her motion, the petitioner states that she is not a lawyer and
cannot afford one, that she has a good case, and that she does not want to risk
making mistakes if she represents herself. Id. The court understands that the
petitioner is not an attorney and that she has limited resources. The case is in
the early stages, however, and has not yet reached a point at which the
petitioner needs to file her brief or present evidence. The petitioner's filings
have, so far, been clear enough that the court can understand them, and she
appears to have the ability to review and analyze the relevant material, to
formulate legal arguments, and to file relevant documents. The court finds that
the petitioner has the ability to proceed on her own, at least at this time. The
court will deny without prejudice the motion to appoint counsel. If the
proceedings become more complicated, or if a hearing becomes necessary later
in the case, the petitioner may renew her request for appointment of counsel.
III.

The Petitioner May Proceed On Her Claim That The State Trial
Court Committed Constitutional Error By Directing A Verdict In
Favor Of The State At The Responsibility Phase Of Trial.
The court will now proceed to review, or “screen” the petition. Rule 4 of

the Rules Governing §2254 Proceedings says:
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
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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 . . . .
At this stage, the court reviews the petition and its exhibits to determine
if the petitioner has set forth claims arising under the Constitution or federal
law that are cognizable on habeas review, exhausted in the state court system,
and not procedurally defaulted.
The petitioner argues that the state trial court erred by directing a verdict
in favor of the state at the responsibility phase of her trial, and removing that
issue from the jury’s consideration. In other words, she argues that the trial
court violated the “Sixth Amendment’s clear command to afford jury trials in
serious criminal cases.” Leach v. Kolb, 911 F.2d 1249, 1255 (7th Cir. 1990)
(quoting Rose v. Clark, 478 U.S. 570, 578 (1986)). In Leach, 911 F.2d at 1257,
the Seventh Circuit concluded that, in a habeas case, the question of whether
constitutional error resulted from “the trial court’s action in directing a verdict
on the issue of insanity should be evaluated under the ‘fundamental
miscarriage of justice’ standard.” Under that standard, “the constitutional
question is limited to whether the petitioner sufficiently alleges a ‘fundamental
defect which inherently results in a complete miscarriage of justice.’ ” Id.
(quoting United States ex rel. Stamps v. Hartigan, 586 F. Supp. 1575, 1577
(N.D. Ill. 1984). That standard “applies only in the rare case where the
petitioner can prove that he is actually innocent of the crime of which he has
been convicted.” McDowell v. Lemke, 737 F.3d 476, 483 (7th Cir. 2013). When

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a person is “acquitted on grounds of insanity, he is actually innocent.” Britz v.
Cowan, 192 F.3d 1101, 1103 (7th Cir. 1999).
Under the fundamental miscarriage of justice standard, the petitioner
must show “a constitutional violation has probably resulted in the conviction[;]
[t]o establish the requisite probability, the petitioner must show that it is more
likely than not that no reasonable juror would have convicted” her in light of
the evidence she presented in support of her insanity defense.” Schlup v. Delo,
513 U.S. 298, 326, 115 S. Ct. 851, 867 (1995); c.f., Leach v. Kolb, 911 F.2d
1249, 1257-58 (1990) (the “trial court’s decision to direct a verdict in favor of
the state on [the defendant’s] insanity defense was not error at all, much less a
fundamental miscarriage of justice” because no reasonable juror could have
found the defendant legally insane by a preponderance of the evidence)
(internal quotation marks omitted). This is “an extremely high bar for the
habeas petitioner to clear.” McDowell, 737 F.3d at 483.
Despite that high bar, the court determines that the petitioner’s
argument states a cognizable claim for habeas relief. The petitioner argues that
she presented enough evidence at trial to cause the jury to find her not guilty
by reason of mental disease or defect, but that the court did not allow the jury
to consider that evidence. She argues that she did not have the state of mind
necessary to be found guilty of the offense—that, in essence, because of her
history of abuse and the mental toll it took on her, she did not realize what she
was doing when she stabbed the victim. The court finds that this claim raises
the question of whether a reasonable juror could have found her legally insane.
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Next, in order to decide whether the petitioner’s habeas case can move
forward, the court must determine whether it appears, on the face of the
petition, that the petitioner exhausted her state remedies on this claim. Section
2254 states, “An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be granted
unless it appears that . . . the applicant has exhausted the remedies available
in the courts of the State . . . .” The United States Court of Appeals for the
Seventh Circuit has held that a district court judge cannot consider the merits
of a petitioner’s habeas argument “unless the state courts have had a full and
fair opportunity to review them.” Farrell v. Lane, 939 F.2d 409, 410 (7th Cir.
1991). A prisoner exhausts a constitutional claim when she has presented it to
the highest state court for a ruling on the merits. O'Sullivan v. Boerckel, 526
U.S. 838, 845, 119 S. Ct. 1728, 1733 (1999); Arrieta v. Battaglia, 461 F.3d 861,
863 (7th Cir. 2006). Once the state’s highest court has had a full and fair
opportunity to evaluate the merits of the claim, a prisoner is not required to
present it again to the state courts. Humphrey v. Cady, 405 U.S. 504, 516 n.
18, 92 S. Ct. 1048, 1055 n. 16 (1972). From the face of the petition, it appears
that the petitioner has satisfied this requirement; the court concludes that she
presented this claim to each level of the Wisconsin state courts and was denied
relief. The court notes, however, that at this stage in the case, the respondent
has not had an opportunity to weigh in on the exhaustion question; nothing in
this order prevents the respondent from arguing that the petitioner has not
exhausted her claims, or from filing pleadings based on that argument.
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Finally, the court considers whether the petitioner procedurally defaulted
her claim. Even if a petitioner has exhausted review of her constitutional claim
in the state courts, it is possible that a federal habeas court cannot review the
claim on the merits because of a “procedural default.” A criminal defendant
“procedurally defaults” a claim—and loses the right to federal habeas review—if
the last state court that issued judgment “ ‘clearly and expressly’ states that its
judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263,
109 S. Ct. 1038, 1043 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320,
327, 105 S. Ct. 2633, 2638 (1985)). There can be several kinds of state
procedural bars, including, but not limited to, failing “to raise a claim of error
at the time or in the place that state law requires.” Trevino v. Thaler, --- U.S. --, 133 S. Ct. 1911, 1917 (2013). At this point in the case, the court can discern
no procedural default from the face of the petition. Therefore the court will
allow the petitioner’s habeas action to proceed.
IV.

Conclusion
The court DENIES AS MOOT the petitioner’s motion for leave to proceed

in forma pauperis. (Dkt. No. 5.)
The court DENIES WITHOUT PREJUDICE the petitioner’s request to
appoint counsel. (Dkt. No. 4.)
The court ORDERS that within sixty days of the date of this order, the
respondent shall ANSWER OR OTHERWISE RESPOND to the petition,
complying with Rule 5 of the Rules Governing §2254 Cases, and showing
cause, if any, why the writ should not issue.
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The court ORDERS that the parties must comply with the following
schedule for filing briefs on the merits of the petitioner’s claims:
(1) the petitioner has forty-five (45) days after the respondent files her
answer to file her brief in support of her petition;
(2) the respondent has forty-five (45) days after the petitioner files her
initial brief to file the respondent’s brief in opposition; and
(3) the petitioner has thirty (30) days after the respondent files her
opposition brief to file a reply brief, if the petitioner chooses to file such a brief.
If, instead of filing an answer, the respondent files a dispositive motion,
the respondent must include a brief and other relevant materials in support of
the motion. The petitioner then must file a brief in opposition to that motion
within forty-five (45) days of the date the respondent files the motion. If the
respondent chooses to file a reply brief, she must do so within thirty (30) days
of the date the petitioner files the opposition brief.
Pursuant to Civil Local Rule 7(f), briefs in support of or in opposition to
the habeas petition and any dispositive motions shall not exceed thirty (30)
pages, and reply briefs may not exceed fifteen (15) pages, not counting any
statements of facts, exhibits and affidavits.
Pursuant to the Memorandum of Understanding between the Attorney
General and this court, the court will send a copy of the petition and this order

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to the Attorney General for the State of Wisconsin and to the Warden of
Taycheedah Correctional Institution.
Dated in Milwaukee, Wisconsin this 7th day of December, 2015.

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