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Prison’s denial of litigation loan didn’t excuse federal habeas procedural default

Steven D. Johnson v. Brian Foster, 7th Circuit Court of Appeals No. 13-2008, 5/6/15

Johnson’s failure to file a petition for review in the Wisconsin Supreme Court means he failed to complete a full round of state-court review, which in turn means his federal habeas petition is barred under the doctrine of “procedural default.” This default could be excused if Johnson shows that prison officials interfered with his ability to comply with the state court’s procedural rules. Johnson argues the prison wrongful denied his request for a litigation loan under § 301.328(1m), and that should excuse his failure to petition the state supreme court for review. The court rejects the argument, holding the loan denial wasn’t an external impediment to Johnson filing a petition for review.

To excuse a procedural default the habeas petitioner must show “good cause.” Murray v. Carrier, 477 U.S. 478, 491 (1986). “Cause” is “an objective factor, external to the defense, that impeded the defendant’s efforts to raise the claim in an earlier proceeding.” Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013). While there’s not “an exhaustive catalog of … objective impediments” that satisfy the cause requirement, interference by state officials that makes compliance with a procedural rule “impracticable” is one recognized impediment. Murray, 477 U.S. at 488. To be “external to the defense,” the cause must be “something that cannot fairly be attributed to” the petitioner. Coleman v. Thompson, 501 U.S. 722, 753 (1991).

The prison denied Johnson’s loan request “because he had funds available in his prison account and had recently spent money on junk food from the canteen rather than saving it for his anticipated legal expenses.” (Slip op. at 10). The court rejects Johnson’s claim that the only permissible basis for denying a loan is that the loan would exceed the $100 annual cap on loans; instead, the prison has discretion to deny loans on other grounds—including the amount of money in the prisoner’s account and recent spending patterns—by the administrative code, DOC § 309.51(1), and DOC’s internal policy manual. (Slip op. at 11-12). Thus, denying Johnson a loan based on his account balance and spending pattern means the denial of the loan was not based on a factor “external” (i.e., not attributable) to Johnson. (Slip op. at 12-16).

But even if the loan was wrongly denied, it’s not clear that made it “impracticable” for him to file a petition for review:

Finally, the record does not support a conclusion that the loan denial actually impeded Johnson’s ability to file a petition for review in the Wisconsin Supreme Court. The prison trust-account statement in the record shows that Johnson had $25.80 in available funds as of May 14, 2012, the day his loan request was denied. It’s not clear that this amount wouldn’t cover the photocopying and postage expenses for a petition for review. As the district court noted, “[e]ven given Johnson’s expenditures and withholdings, his prison trust account statement shows a balance of $25.80 … , thus not leaving him completely without funds.” Indeed, Johnson doesn’t argue that $25.80 would have been insufficient to fund his petition. See WIS. ADMIN. CODE DOC § 309.51(2) (capping the price to prisoners for photocopies at 15¢ per page and paper at 2¢ per page).

(Slip op. at 16).

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