Jackson v. Kemper

Filing 6

ORDER signed by Judge Pamela Pepper on 8/7/2017. 2 Petitioner's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Respondent to answer or otherwise respond to petition within 60 days. See pp. 4-5 for briefing schedule and page length allowances. (cc: all counsel, via mail to Debradre Jackson at Racine Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DEBRADRE D. JACKSON,

Case No. 17-cv-433-pp

Petitioner,
v.
PAUL S. KEMPER,
Respondent.

ORDER GRANTING MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND SCREENING
PETITION (DKT. NO. 1).
_____________________________________________________________________________
Debradre D. Jackson filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. §2254. Dkt. No. 1. He also filed a motion for leave to
proceed without prepayment of the filing fee, along with his prisoner trust fund
account statement. Dkt. Nos. 2, 5.
I.

Motion for Leave to Proceed Without Prepaying the Filing Fee
Under 28 U.S.C. §1915, an indigent litigant may file a petition for habeas

corpus relief without paying the required costs and fees if he files an affidavit
stating that he does not have the ability “to pay such fees or give security
therefor,” and stating “the nature of the action, defense or appeal and affiant’s
belief that the person is entitled to redress.” 28 U.S.C. §1915(a)(1). Because the
filing fee for a petition for habeas corpus is only $5.00,1 it is rare for this court

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28 U.S.C. §1914(a)
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to conclude that a petitioner does not have sufficient income or assets to pay
the fee.
In this case, the petitioner’s trust account activity statement shows that,
as of March 30, 2017, he had a balance of $0.00. Dkt. No. 5 at 3. His average
monthly balance also was $0.00. Id. Consequently, it does not appear that he
can pay the filing fee. The court will grant the petition to proceed without
prepayment of fees and costs. Dkt. No. 2.
II.

Screening the Petition
A.

Facts

On December 10, 2014, the petitioner was convicted in Milwaukee
County Circuit Court of substantial battery, repeat offender. Dkt. No. 1 at 2.
The circuit court sentenced him to three years of initial confinement and two
years of extended supervision, for a total sentence of five years. Id. The
Wisconsin Court of Appeals affirmed his conviction, and the Wisconsin
Supreme Court denied his petition for review. Id. at 3. He also pursued a postconviction motion under Wis. Stat. §974.06, which the circuit court denied on
November 28, 2016. Id. at 4.
The petitioner filed this federal habeas petition on March 24, 2017. Dkt.
No. 1. The petitioner alleges three grounds of relief. Id. at 6-8. In Ground One,
he argues that the trial court violated his Sixth Amendment confrontation
clause rights when it admitted a recording of a 911 call; he argues that he was
not able to cross-examine the caller. Id. at 6. In Ground Two, the petitioner
alleges insufficiency of the evidence; he indicates that the only evidence that he
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was the perpetrator was the 911 call, and that it was not sufficient to identify
him. Id. at 7. In Ground Three, the petitioner asserts that his Fifth Amendment
due process rights were violated because no one identified him as the
perpetrator of the offense. Id. at 8.
B.

Analysis

Rule 4 of the Rules Governing §2254 Proceedings states:
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
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 . . . .
The screening court must allow a habeas petition to proceed unless it is clear
to the court that the petitioner is not entitled to relief in the district court. At
the screening stage, the court expresses no view on the merits of any of the
petitioner’s claims; the court considers only whether the petitioner has stated
claims of a type that are generally cognizable on habeas review.
The Sixth Amendment’s Confrontation Clause guarantees a criminal
defendant the right to be confronted with the witnesses against him. The
petitioner argues that by admitting the recording of the 911 call at his trial, the
trial court denied him that right. Without considering the merits of that claim,
the court finds that it is the kind of claim that is cognizable on habeas review.
The petitioner next alleges that the state did not present sufficient
evidence to support his conviction. The Supreme Court has held that “a state
prisoner who alleges that the evidence in support of his state conviction cannot
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be fairly characterized as sufficient to have led a rational trier of fact to find
guilt beyond a reasonable doubt has stated a federal constitutional claim.”
Jackson v. Virginia, 443 U.S. 307, 321 (1979). Without passing on the merits,
the court will allow the petitioner to proceed on this claim.
Finally, the petitioner argues that investigators violated his due process
rights under the Fifth Amendment when they did not seeks any evidence that
would have identified him as the perpetrator of the battery. Without deciding
whether the investigators may have violated the petitioner’s due process rights,
the court finds that this is a claim that is cognizable on habeas review.
III.

Conclusion
The court GRANTS the petitioner’s motion to proceed without

prepayment of the filing fee. Dkt. No. 2.
The court ORDERS that within sixty (60) 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.
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 his
answer to file his brief in support of his petition;
(2) the respondent has forty-five (45) days after the petitioner files his
initial brief to file the respondent’s brief in opposition; and

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(3) the petitioner has thirty (30) days after the respondent files his
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
(such as a motion to dismiss), 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, he
must do so within thirty (30) days of the date the petitioner files the
opposition brief.
Under 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.
Under the Memorandum of Understanding between the Attorney General
and this court, the Attorney General for the State of Wisconsin and Paul
Kemper, Warden of the Racine Correctional Institution, will receive copies of
the petition and this order electronically.
Dated in Milwaukee, Wisconsin this 7th day of August, 2017.
BY THE COURT:

________________________________________________
HON. PAMELA PEPPER
United States District Judge

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