Wright v. Meisner

Filing 4

DECISION AND ORDER signed by Judge Rudolph T Randa on 6/9/2016 re 1 Petition for Writ of Habeas Corpus filed by Larry D Wright. The Respondent must file an answer to the petition by 8/8/2016. Defense counsel may file a response to the motion by 9/ 8/2016. Any reply by Petitioner and/or Respondent is due by 10/31/2016. Petitioners request for appointment of counsel is DENIED without prejudice. Clerk of Court is to send a copy of this Decision and Order to trial and appellate counsel. (cc: all counsel - via US Mail to Larry D Wright - Redgranite Correctional Institution; Attorney Thomas J Marola; Attorney Carl W Chesshir)(lz)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LARRY D. WRIGHT,
Petitioner,
-vs-

Case No. 16-C-525

MICHAEL MEISNER,
Warden of Redgranite Correctional Institution,
Respondent.

DECISION AND ORDER
Pro se Petitioner Larry D. Wright, an inmate at the Redgranite
Correctional Institution, has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging his October 2010, conviction by
the Milwaukee County Circuit Court following a jury trial finding him
guilty of second-degree sexual assault (two counts) and child enticement
(one count). Under Rule 4 Governing § 2254 Cases in the United States
District Courts this Court must determine whether the action is plainly
without merit.

Unless plainly without merit, the Respondent Michael

Meisner should be required to answer.
Here, Wright alleges that he is in custody pursuant to the conviction he
challenges, and he raises arguable constitutional claims.

Therefore,

Respondent Michael Meisner will be required to file an answer to the instant

petition which must conform to the requirements of Rule 5 of the Rules
Governing § 2254 Cases in the District Courts. Because the motion includes

allegations of ineffective assistance of trial counsel and appellate counsel, 1
the Court will direct the Clerk of Court to send a copy of this Order to
Wright’s state court attorneys and afford them an opportunity to respond.
Wright also requests appointment of counsel from the Federal
Defender’s Office to represent him in this action. Prisoners do not have a
constitutional right to counsel when mounting attacks upon their
convictions. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
However, pursuant to 18 U.S.C. 3006A(a)(2), if a § 2254 petitioner is
“financially eligible” and if the Court finds that “the interests of justice so
require,” the Court may recruit counsel to represent a petitioner.
Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013).

See

Recruitment 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); Pruitt v. Mote, 503 F.3d 647, 657 (7th Cir. 2007).
The petition also includes allegations of ineffective assistance of postconviction
counsel. The same attorney represented Wright on his appeal and post-conviction
motions. However, there is no constitutional right to an attorney in state postconviction
proceedings.” Coleman v. Thompson, 501 U.S. 722, 725 (1991) (internal citations
omitted). Therefore, there is no right to effective assistance of post-conviction counsel.
See id.
1

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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.” Pruitt,
503 F. 3d at 649.
If a plaintiff makes a reasonable attempt to secure counsel, the court
must examine “whether the difficulty of the case -- factually and legally -exceeds the particular plaintiff’s capacity as a layperson to coherently
present it.” Id. at 655. “There are no fixed requirements for determining a
plaintiff’s competence to litigate his own case.” Id. Normally, the district
court will “take into consideration the plaintiff’s literacy, communication
skills, educational level, and litigation experience” in relationship to the
difficulties of the particular case. Id. But “in the end, the estimation as to
whether a plaintiff can handle his own case must be a practical one, made
in light of whatever relevant evidence is available on the question.”
Santiago v. Walls, 599 F.3d 749, 762 (7th Cir. 2010) (internal citations and
quotation marks omitted).
At this juncture, the Court has no information about Wright’s
financial situation, any attempts to obtain counsel, or any information
about his ability to represent himself in this action. Therefore, Wright’s
request for appointment of counsel is denied without prejudice.
-3-

NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
The Clerk of Court is directed to send a copy of this Decision and
Order to trial and appellate counsel.
On or before August 8, 2016, the Respondent MUST FILE an
answer to the instant petition;
Defense counsel may file a response to the motion on or before
September 8, 2016; and
Any reply MUST BE FILED by Wright and/or the Respondent on
or before October 31, 2016.
Dated at Milwaukee, Wisconsin, this 9th day of June, 2016.
BY THE COURT:

HON. RUDOLPH T. RANDA
U.S. District Judge

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