Williams v. Eckstein

Filing 7

ORDER signed by Judge Pamela Pepper on 8/2/2017. 2 Petitioner's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. 4 Petitioner's MOTION to Appoint Counsel DENIED without prejudice. Within 60 days, respondent to answer or otherwise respond to grounds 1-3 of petition. See pages 6-7 of order for briefing schedule and length of briefs. (cc: all counsel, via mail to Jovan Williams at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JOVAN WILLIAMS,

Case No. 17-cv-602-pp

Petitioner,
v.
WARDEN SCOTT ECKSTEIN,
Respondent.

ORDER GRANTING MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYMENT OF THE FILING FEE (DKT. NO. 2), DENYING WITHOUT
PREJUDICE PETITIONER’S MOTION TO APPOINT COUNSEL (DKT. NO. 4),
AND REQUIRING RESPONDENT TO FILE AN ANSWER OR OTHER
RESPONSIVE PLEADING

On April 27, 2017, Jovan Williams filed a petition for writ of habeas
corpus, challenging an October 22, 2013 judgment in Milwaukee County
Circuit Court convicting him of felony murder, as a party to a crime, with
armed robbery as the predicate offense. Dkt. No. 1. The petitioner also filed a
motion for leave to proceed without prepayment of the $5 filing fee, dkt. no. 2,
a certified copy of his trust account statement, dkt. no. 3, and a motion to
appoint counsel, dkt. no. 4. This order grants the motion to procced without
the prepayment of the filing fee, screens the petitioner, and denies without
prejudice the motion for appointment of counsel.
I.

Motion to Proceed Without Prepaying the Filing Fee
The petitioner’s petition to proceed without prepayment of the $5.00

filing fee indicates that the petitioner has no bank account, no retirement
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account, no investments, no real estate, and no valuable assets. Dkt. No. 2.
The petitioner filed a trust account statement for the period from October 25,
2016 through April 25, 2017—the six months prior to the date he filed his
petition. Dkt. No. 3. The petitioner’s beginning balance on October 25, 2016
was $0, and his ending balance on April 25, 2017 was $0. Id. The court
concludes from this information that the petitioner does not have the ability to
pay the $5.00 filing feel, and will grant his motion to proceed without
prepayment of the filing fee.
II.

Screening the Petition
The court reviews a petition for writ of habeas corpus under Rule 4 of the

Rules Governing §2254 Cases, which provides:
If it plainly appears from 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,
or take other action the judge may order.
Rule 4, Rules Governing §2254 Cases. The court generally reviews whether the
petitioner has set forth cognizable constitutional or federal law claims. A
petitioner may not obtain habeas relief for errors of state law. Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764,
780 (1990)).
The petitioner’s first ground for relief asserts that the state did not prove
beyond a reasonable doubt that he participated in the robbery. Dkt. No. 1 at 67. His second ground alleges that his trial lawyer provided ineffective
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assistance of counsel, because counsel failed to: (1) file pretrial motions; (2)
move to suppress evidence, (3) address inconsistent statements, (4) adequately
impeach the victim, (5) move to dismiss, (6) seek a special instruction relating
to felony murder, and (7) enter a special plea. Id. at 7. As his third ground, the
petitioner claims that his appellate counsel erred by filing a no-merit brief
without consulting the petitioner, and did not raise his trial counsel’s errors.
Id. at 8. Finally, in ground four, the petitioner asserts that the circuit court
abused its sentencing discretion in failing to consider his history or status as a
victim, and in sentencing him to fifteen years when he did not participate in
the crime. Id. at 9.
The petitioner’s first three grounds—insufficient evidence, ineffective
assistance of trial counsel, and ineffective assistance of appellate counsel—
state claims under the Due Process Clause of the Fourteenth Amendment and
under the Sixth Amendment. The court will allow him to proceed on those
claims. The petitioner’s argument that the state court abused its sentencing
discretion, however, is an allegation that the sentencing court committed a
state law error; habeas relief is not available for a claim of an error of state law.
See Estelle, 502 U.S. 67-68.
III.

Motion to Appoint Counsel
The petitioner also asks the court to appoint counsel. The Criminal

Justice Act, 18 U.S.C. § 3006A(a)(2)(B), permits the court to appoint counsel for
a petitioner seeking habeas relief under 28 U.S.C. § 2254. The court must find
that the appointment of counsel would serve “the interests of justice” and that
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the petitioner is “financially eligible.” 18 U.S.C. § 3006A(a)(2). “Due process
does not require appointment of counsel for indigent prisoners pursuing . . .
federal habeas relief.” Pruitt v. Mote, 503 F.3d 647, 657 (7th Cir. 2007).
Indigent civil litigants have no constitutional or statutory right to counsel in
federal court. Id. at 649.
In deciding whether to appoint counsel, the court looks to the standards
that courts follow in civil cases involving indigent plaintiffs. Wilson v.
Duckworth, 716 F.2d 415, 418 (7th Cir. 1983); Jackson v. County of McLean,
953 F.2d 1070, 1071 (7th Cir. 1992). The court first asks whether the litigant
has attempted to obtain counsel himself, or has been effectively precluded from
doing so. Pruitt, 503 F.3d at 654-55; Jackson, 953 F.2d at 1072-73.
Once the petitioner has established that his reasonable efforts to obtain
counsel were unsuccessful, the court conducts “a two-fold inquiry into both the
difficulty of the plaintiff’s claims and the plaintiff’s competence to litigate those
claims himself.” Pruitt, 503 F.3d at 655. “The question is whether the difficulty
of the case—factually and legally—exceeds the particular [party’s] capacity as a
layperson to coherently present it to the judge or jury himself.” Id. Whether a
party appears competent to litigate his own claims, given their difficulty,
includes consideration of all parts of litigation, including evidence gathering
and responding to motions. Id. Regarding the party’s ability to litigate the case,
courts should review “whatever relevant evidence is available on the question,”
including pleadings and communications from the party. Id.

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The petitioner states that he resides in the Restrictive Housing Unit in
Green Bay Correctional Institutional, which limits his access to the law library.
Dkt. No. 4 at 1. He suffers from “mental disorders like severe depression, antipersonality disorder.” Id. He did not get a high school diploma or a G.E.D., has
a low reading level, and does not know the law. Id. at 2. The petitioner attached
to his motion letters from three lawyers whom he contacted, but who declined
to represent him.
The court finds that the petitioner has provided sufficient evidence that
he tried to find counsel on his own, so he has satisfied the first prong of the
Pruitt test. But at this point, the court will not appoint counsel to represent
him. The majority of inmates who file cases ask the court to appoint counsel to
represent them. They are not lawyers, they do not have the money to hire
lawyers, and many of them don’t have high school educations and have mental
health or emotional problems. The court does not have the resources to appoint
an attorney for every inmate who asks for one, and does not appoint counsel
until the case becomes so complex that it appears that the inmate cannot
continue to represent himself. Here, the petitioner clearly stated his claims in
his complaint. The court understands what the petitioner is alleging. At this
point in the case, the court believes that the petitioner can explain what he
thinks went wrong in his criminal case. If things become more complex down
the line, the petitioner can renew his motion to appoint counsele.
The court GRANTS the petitioner’s motion for leave to proceed without
prepayment of fees. Dkt. No. 2.
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The court DENIES WITHOUT PREJUDICE petitioner’s motion to appoint
counsel. Dkt. No. 4.
The court ORDERS that within sixty (60) days of the date of this order,
the respondent (Warden Scott Eckstein) shall ANSWER OR OTHERWISE
RESPOND to grounds one through three of 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) within forty-five (45) days after the respondent files his answer, the
petitioner (Jovan Williams) shall file his brief in support of his petition.
(2) within forty-five (45) days after the petitioner files his initial brief, the
respondent (Warden Eckstein) shall file his brief in opposition.
(3) within thirty (30) days after the respondent files his opposition brief,
the petitioner (Jovan Williams) shall 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 shall file his
opposition brief 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.

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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 shall 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 the Warden
of the Green Bay Correctional Institution will receive copies of the petition and
this order electronically.
Dated in Milwaukee, Wisconsin, this 2nd day of August, 2017.
BY THE COURT:

___________________________________
HON. PAMELA PEPPER
United States District Judge

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