Sanders v. Foster

Filing 7

RULE 4 ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED. IT IS FURTHER ORDERED that the respondent is directed to serve and file an answer, motion, or o ther response to the petition for writ of habeas corpus, complying with Rule 5 of the Rules Governing Habeas Corpus Cases, within SIXTY (60) days of the date of this order. signed by Magistrate Judge Nancy Joseph on May 29, 2018 (cc: all counsel, via US mail to Petitioner) (cc) Modified on 5/29/2018 (blr).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

QUORDALIS V. SANDERS,
Petitioner,
v.

Case No. 18-CV-628

BRIAN FOSTER,
Respondent.
ORDER
Quordalis Sanders, who is currently incarcerated at Waupun Correctional
Institution, seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Docket # 5.)
Accompanying his petition is a motion for leave to proceed in forma pauperis. (Docket # 2.)
Sanders has also submitted his prison account statement for the 6-month period
immediately preceding the filing of the petition, in accordance with 28 U.S.C. § 1915(a)(2).
(Docket # 3.)
Ordinarily, a habeas petitioner must pay a statutory filing fee of $5.00 to file an
application for habeas review in federal court. 28 U.S.C. § 1914(a). However, under 28
U.S.C. § 1915(a)(1), the court may authorize the commencement of a habeas petition
without prepayment of fees if a party submits an affidavit asserting his inability to pay and
stating “the nature of the action, defense or appeal and affiant’s belief that the person is
entitled to redress.” Upon review of Sanders’ affidavit and his prison account statement, I
find that he has insufficient assets to pay the $ 5.00 filing fee. Accordingly, Sanders’ motion
to proceed without prepayment of the filing fee (Docket # 2) is granted.

I must now review his petition in accordance with Rule 4 of the Rules Governing
Section 2254 Cases. Section 2254(a) provides that a district court “shall entertain an
application for a writ of habeas corpus [o]n behalf of a person in custody in violation of the
Constitution or laws or treaties of the United States.” Under Rule 4, the district court must
dismiss a petition summarily if “it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court.” During the initial
review of habeas petitions, the Court generally reviews whether the petitioner has set forth
cognizable constitutional or federal law claims and exhausted available state remedies.
Sanders’ first ground for relief is a Fourth Amendment violation. (Docket # 1 at 6.)
Sanders’ alleges that the magistrate who issued his arrest warrant was not neutral.
Generally, there is no federal habeas review for Fourth Amendment violations. Sutton v.
Pfister, 834 F.3d 816, 820 (7th Cir. 2016). However, a petitioner qualifies for the narrow
exception “if he was not afforded the opportunity for full and fair consideration of his
search-and-seizure claim at trial court and direct review.” Id. (quoting Stone v. Powell, 428
U.S. 465, 486 (1976)). Because a possible exception applies, it is not plain from the face of
the petition that Sanders is not entitled to relief.
Second, Sanders raises a vindictive prosecution claim. (Docket # 5 at 7.) It appears
that Sanders alleges that the prosecutor charged him with additional crimes after Sanders
raised his right to a preliminary hearing. (Id.) The Seventh Circuit has recognized vindictive
prosecution as a valid Due Process constitutional claim for habeas petitioners. See Williams
v. Bartow, 481 F.3d 492, 502 (7th Cir. 2007). Third, Sanders argues that he was convicted
based on insufficient evidence. (Docket # 5 at 8.) Insufficiency of evidence has also been

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recognized as a cognizable Due Process claim available for habeas relief. See Carrion v.
Butler, 835 F.3d 764, 773 (7th Cir. 2016).
Finally, Sanders raises an ineffective assistance of trial counsel claim as well as an
ineffective assistance of post-conviction counsel claim. An ineffective assistance of counsel
allegation is a clear constitutional ground for habeas relief. Strickland v. Washington, 466 U.S.
668 (1984). Although not entirely clear, it appears Sanders claims that his counsel failed to
raise important evidence during his trial and post-trial proceedings. (Docket # 5 at 10.)
Upon review of the petition, it is not plain from the face of the petition that Sanders is not
entitled to relief.
NOW, THEREFORE, IT IS ORDERED that a copy of Sanders’ petition and this
Order shall be served upon the respondent by service upon the State of Wisconsin Attorney
General.
IT IS FURTHER ORDERED that the respondent is directed to serve and file an
answer, motion, or other response to the petition for writ of habeas corpus, complying with
Rule 5 of the Rules Governing Habeas Corpus Cases, within SIXTY (60) days of the date of
this order.
IT IS FURTHER ORDERED THAT unless the respondent files a dispositive
motion in lieu of an answer, the parties shall abide by the following schedule regarding the
filing of briefs on the merits of the petitioner’s claims:
1.

The petitioner shall have forty-five (45) days following the filing of the

respondent’s answer within which to file his brief in support of his petition;
2.

The respondent shall have forty-five (45) days following the filing of the

petitioner’s initial brief within which to file a brief in opposition; and

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3.

The petitioner shall have thirty (30) days following the filing of the

respondent’s opposition brief within which to file a reply brief, if any.
In the event that respondent files a dispositive motion and supporting brief in lieu of
an answer, this briefing schedule will be suspended and the briefing schedule will be as
follows:
1.

The petitioner shall have forty-five (45) days following the filing of the

respondent’s dispositive motion and supporting initial brief within which to file a brief in
opposition;
2.

The respondent shall have thirty (30) days following the filing of the

petitioner’s opposition brief within which to file a reply brief, if any.
Pursuant to Civil L.R. 7(f), the following page limitations apply: briefs in support of
or in opposition to the habeas petition or a dispositive motion filed by the respondent must
not exceed thirty (30) pages and reply briefs must not exceed fifteen (15) pages, not counting
any statements of facts, exhibits, and affidavits.
Sanders is hereby notified that, from now on, he is required, under Fed. R. Civ. P.
Rule 5(a), to send copies of all filings with the court to the respondent or respondent’s
counsel. Sanders should also retain a personal copy of each document. If Sanders does not
have access to a photocopy machine, he may send out identical handwritten or typed copies
of any documents. The Court may disregard any papers or documents which do not indicate
that a copy has been sent to the respondent or respondent’s counsel.

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Dated at Milwaukee, Wisconsin this 29th day of May, 2018.
BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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