Jones v. Schaub
ORDER signed by Judge Pamela Pepper on 1/17/2017 DENYING 10 Petitioner's motion for an order for release pending habeas corpus disposition. (cc: all counsel; by US Mail to petitioner) (pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 16-CV-1427-PP
ORDER DENYING PETITIONER’S MOTION FOR ORDER FOR
RELEASE PENDING HABEAS CORPUS DISPOSITION (DKT. NO. 10)
On October 24, 2016, Shafia Jones filed a petition for writ of habeas
corpus under 28 U.S.C. §2254. Dkt. No. 1. The petition claims that the court
that convicted the petitioner did not have subject matter jurisdiction, that she
is innocent, that her trial counsel was ineffective, that her conviction violated
the Double Jeopardy clause, and that she was denied due process because she
was denied a jury trial. Id. The deadline for the warden to answer or otherwise
respond was January 17, 2017, dkt. no. 8; the warden has filed a motion to
dismiss in lieu of a brief, dkt. no. 14, and the petitioner’s opposing brief will be
due on or before Friday, January 27, 2017 (see dkt. no. 8 at 2). On December
6, 2016, however, the petitioner filed this motion, asking the court to release
her pending the court’s decision on her petition. Dkt. No. 10. The respondent
has not filed a response to that motion.
In the motion, the petitioner asks the court to release her on personal
recognizance without any bond. Id. at 1. She states that she has lived in
Wisconsin for over thirty-six years, and is not a flight risk. Id. She plans to live
at home with her mother and seven children upon release, and states that she
is not a threat to the community. Id. She also argues that her conditions of
confinement violate the Constitution. (The petitioner has another pending case
in this district, challenging the conditions of her confinement under 28 U.S.C.
§1983. See Jones v. Fond du Lac County Jail et al, 16-cv-1156-WED.) The
petitioner argues that she is likely to prevail on the merits of her habeas case
for the reasons she states in her petition. Id. at 1-2.
“There is abundant authority that federal district judges in habeas
corpus and section 2255 proceedings have inherent power to admit applicants
to bail pending the decision of their cases, but a power to be exercised very
sparingly.” Cherek v. U.S., 767 F.2d 335, 337 (7th Cir. 1985); see Kramer v.
Jenkins, 800 F.2d 708, 709 (7th Cir. 1986) (interpreting Cherek to allow federal
district judges to grant bail both to state and federal petitioners); see also
Bolante v. Keisler, 506 F.3d 618, 620 (7th Cir. 2007) (“Inherent judicial
authority to grant bail to persons who have asked for relief in an application for
habeas corpus is a natural incident of habeas corpus . . . . A judge ought to be
able to decide whether the petitioner should be allowed to go free while his
claim to freedom is being adjudicated.”).
A defendant whose conviction has been affirmed on
appeal (or who waived his right of appeal, as by
pleading guilty, or by foregoing appeal after being
convicted following a trial) is unlikely to have been
convicted unjustly; hence the case for bail pending
resolution of his postconviction proceeding is even
weaker than the case for bail pending appeal. And the
interest in the finality of criminal proceedings is poorly
served by deferring execution of sentence till long after
the defendant has been convicted.
Cherek v. U.S., 767 F.2d at 337. Thus, courts should consider the
requirements of the federal statute for bail pending appeal for a federal
conviction (18 U.S.C. §3143(b)) as a preliminary step in addressing the merits
of a motion for release. Id. at 337-38 (“a defendant who cannot bring himself
within [the terms of §3143(b)] is not entitled to bail pending … decision of his
Under 18 U.S.C. §3141(b), a court may allow release pending appeal only
if it finds (A) “by clear and convincing evidence that the person is not likely to
flee or pose a danger” to the community; and (B) “that the appeal is not for the
purpose of delay and raises a substantial question of law or fact likely to result
in” a favorable determination.
At this point in the habeas process, the court cannot conclude that the
petitioner’s claims are “likely” to result in a favorable determination for her.
The court reviewed the documents attached to her habeas petition and the
relevant case dockets on the Wisconsin Court website. It appears that the
petitioner may have procedurally defaulted her claims. The petitioner attached
to her petition the Wisconsin Court of Appeals’ order denying her state habeas
petition; in that order, it stated that “[t]he direct appeal process is the proper
means through which to obtain the relief Jones seeks.” Dkt. No. 1-1 at 2. The
petitioner’s deadline to file a notice of direct appeal was September 7, 2016.
See https://wscca.wicourts.gov/ (State v. Shafia M. Jones, Case No.
2016XX000935). Instead of filing a direct appeal, the petitioner pursued her
state habeas petition in the Wisconsin Supreme Court. See
https://wscca.wicourts.gov/ (Shafia Jones v. Deanne Schaub, Case No.
2016AP001433). The Wisconsin Supreme Court denied the relief, ex parte. Id.
Under 28 U.S.C. §2254(b)(1)(A), federal courts cannot grant habeas relief
unless the petitioner exhausts the available state court remedies. The
petitioner failed to file a direct appeal. Neither in her petition, dkt. no. 1, nor in
this motion for release, dkt. no. 10, did the petitioner explain the cause for her
failure to file a direct appeal, or explain how she would be prejudiced if the
court were to deny her petition despite her failure to appeal. Lewis v. Sternes,
390 F.3d 1019, 1026 (7th Cir. 2004) (finding that procedurally defaulted claims
are barred from federal review unless the petitioner can demonstrate both
cause and prejudice, or that denying the petition will result in a miscarriage of
justice.) She does assert that she is actually innocent, making it a manifest
injustice to detain her, but she does not provide facts to support the contention
that she did not commit the crime. Dkt. No. 10 at 2. Accordingly, the court
finds that the petitioner is unlikely to succeed on her habeas petition. Because
the petitioner did not meet the preliminary step to obtaining release pending
determination of her habeas petition, the court will deny the motion.
The court notes one other issue. On December 30, 2016, the court
received a letter from the petitioner asking the court whether it received her
motion for counsel and motion for release. Dkt. No. 13. The court has not
received, either in this case or in the petitioner’s §1983 case, a motion for
appointment of counsel. Even if the petitioner had filed such a motion, she has
not made the threshold showing required by the law. Civil litigants do not have
a constitutional or statutory right to appointed counsel, but the court has the
discretion to request lawyers to represent indigent litigants in appropriate
cases under 28 U.S.C. §1915(e)(1). Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir.
2007) (en banc); Lutrrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997) (citing
Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995)). A litigant first must make
a reasonable attempt to obtain a lawyer on her own. Pruitt, 503 F.3d at 65455; Zarnes, 64 F.3d at 288. The Seventh Circuit has not clearly defined the
phrase “reasonable attempt to obtain counsel,” but it has affirmed one court’s
requirement that the litigant provide the names and addresses of at least three
attorneys that the litigant contacted and who turned her down. Romanelli v.
Suilene, 615 F.3d 847, 852 (7th Cir. 2010). Thus, in order for the court to
consider appointing counsel for the petitioner, she must file a motion
demonstrating that she contacted at least three attorneys and that they turned
her down. At that point, the court will decide whether the case is so
complicated, both factually and legally, that the litigant does not appear able to
handle the case herself. Pruitt, 503 F.3d at 654 (citing Farmer v. Hass, 990
F.2d 319, 322 (7th Cir. 1993)).
The court DENIES the petitioner’s motion for order for release pending
habeas corpus disposition. Dkt. No. 10.
Dated in Milwaukee, Wisconsin this 17th day of January, 2017.
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