Williams, Clyde B. v. Bartow, Byran ( 2007 )

IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 05-4736
CLYDE B. WILLIAMS,
Petitioner-Appellant,
v.
BYRAN BARTOW,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 C 89--William C. Griesbach, Judge.
ON MOTION FOR APPOINTMENT OF COUNSEL
JUNE 21, 2007*
*
This chambers opinion is being released initially in
typescript form.
No. 05-4736 Page 2
RIPPLE, Circuit Judge (in chambers). Clyde Williams has
filed a motion for the appointment of counsel to assist him in the
preparation of his petition for certiorari to the Supreme Court of
the United States. Because this court’s plan for furnishing
representation under the Criminal Justice Act of 1964 imposes
certain responsibilities on appointed counsel in this respect, I
ordered appointed counsel to reply to the motion. For the reasons
set forth in this chambers opinion, I now deny the motion.
Petitioner Clyde Williams was convicted in Wisconsin state
court of three counts of first-degree sexual assault of a child. After
unsuccessfully pursuing his state court direct appeal, he filed a
petition for habeas corpus in the United States District Court for
the Eastern District of Wisconsin. The district court denied relief,
and on March 20, 2007, this court affirmed. See Williams v.
Bartow, 481 F.3d 492 (7th Cir. 2007). On appeal, Mr. Williams
argued that (1) he was placed twice in jeopardy on certain offenses
after the district court granted a mistrial and he was retried, (2) the
prosecutor vindictively prosecuted him by adding new charges for
a separate crime when Mr. Williams refused to enter into a plea
agreement after he gained a new trial on appeal, and (3) his right to
a speedy trial was violated by substantial delays during his final
trial. This court, relying on established precedent, affirmed the
district court on all points. In his current motion, Mr. Williams only
asks this court to appoint new counsel to file a petition for a writ of
certiorari.
In response to this court’s order, his attorney has filed a
statement advising the court that he believes there are no
reasonable grounds for a petition for a writ of certiorari. Counsel
represents that he wrote a letter to Mr. Williams explaining that he
did not believe the Supreme Court of the United States would grant
certiorari in Mr. Williams’ case. The letter further described
Mr. Williams’ right to file the petition on his own or to motion this
court to appoint new counsel to file a petition for him. Finally, the
No. 05-4736 Page 3
letter invited Mr. Williams to contact counsel if he had any
questions.
The Seventh Circuit Plan for furnishing representation
under the Criminal Justice Act of 1964 requires an appointed
attorney to advise the defendant in writing of his right to seek
review by the Supreme Court. See Seventh Circuit Plan, V.3. If,
after consultation, the defendant so requests and there are
reasonable grounds for counsel properly to do so, the attorney must
prepare and file a petition for writ of certiorari. Id. If counsel
determines that reasonable grounds for filing a petition do not exist,
counsel must promptly inform the defendant and the defendant
may file a motion asking this court to direct counsel to seek
certiorari. Id. See United States v. Howell, 37 F.3d 1207 (7th Cir.
1994) (Ripple, J. in chambers).
Counsel’s response demonstrates that he has fulfilled his
duties under the Plan. Counsel points out that Mr. Williams’ case
did not involve either a division among the federal circuits on an
important issue of law, a new issue of federal law on which the
Supreme Court has not ruled or an implausible interpretation of the
Constitution or a federal statute. While these factors are not the
only ones that the Supreme Court might consider in determining to
grant certiorari, see Supreme Court Rule 10, it is clear that, under
the circumstances of this case, counsel’s advice fulfilled his
responsibility of assessing the merits of the case and advising his
client of whether there are reasonable grounds for seeking a writ of
certiorari. Although this court has the authority to direct counsel
to file a petition for certiorari, see Seventh Circuit Plan, V.3, there
is certainly no basis for such action here. Notably, Mr. Williams
does not indicate what arguments he would like counsel to raise in
a petition for certiorari.
No. 05-4736 Page 4
Under these circumstances, there is no sound basis for the
appointment of new counsel, and Mr. Williams’ motion for the
appointment of counsel must be denied.
MOTION DENIED