he had much greater skills than have been shown by, or would be expected of, a person with Mr. Walters' background. Unfortunately, Mr. Walters has not presented any evidence to show that his claim is even arguably meritorious.
Mr. Walters' final claim of denial of access is that he was never able to bring a post-conviction petition or petition for habeas corpus challenging a denial of due process at the time of his original arrest. At that time, Mr. Walters says he was questioned and signed a statement without the presence of his mother, although he was a juvenile. A claim based on this fact was not raised at Mr. Walters' trial nor on his direct appeal, in both of which he was represented by counsel. In this proceeding, Mr. Walters has not shown any basis for believing that it would be accepted by any court. Neither has Mr. Walters shown that he ever attempted to raise this claim.
He says he drafted, or obtained help in drafting, three habeas corpus petitions, but none are alleged to have argued this issue. As I understand Mr. Walters' claim on this issue, it is that if he had had better help, someone would have raised the claim. But this is really an argument that Mr. Walters had a right to counsel in filing a post-conviction petition or habeas corpus petition (and yet neither his lawyer in his criminal trial nor counsel on appeal thought of the issue) rather than an argument that Mr. Walters has been denied access to the courts.
Since the courts have held that a prisoner does not have a right to counsel on post-conviction petitions and habeas corpus proceedings, however, and Mr. Walters has neither shown a basis for a conclusion that the claim would have merit nor that he attempted to present this claim in any of the three habeas petitions drafted by him, the fact that the first two petitions may never have been filed and the third was dismissed because barred by the statute of limitations does not present an issue of denial of access to court.
My conclusion after trial is that neither Mr. Ganci nor Mr. Walters has shown any prejudice as a result of denial of access to the courts. In their offer of proof filed at the time I was considering whether to reopen the testimony, plaintiffs argued that very little proof was found sufficient to satisfy the requirements in Lewis v. Casey. I have looked at the pages cited by plaintiffs in the district court opinion in that case, however, and there is insufficient information upon which to draw any conclusions. On the proof before me I am forced to conclude that neither named plaintiff has forfeited a non-frivolous claim because of lack of access to court (as that phrase was limited in Lewis v. Casey, which clearly restricted the substance of access as well).
The changes in what had previously been understood to be required under the Constitution announced by Lewis v. Casey mean that years of work -- amounting to thousands of hours -- by plaintiffs' counsel, working without pay, will not lead to any change in a system that I previously concluded provided illiterate inmates, if not named plaintiffs, with inadequate access to courts as that term had been defined in earlier cases interpreting Bonds v. Smith. It may be that if the named plaintiffs' claims of inadequate access do not stand up to scrutiny, the claims of others are likely hollow as well. But I previously found, based on the testimony of experts, paid staff and inmate clerks, that many inmates are unable even to understand the procedures necessary to file a grievance or fill out or send a form to a court to begin a complaint. Inmates like Mr. Ganci and Mr. Walters are articulate enough, intelligent enough or persistent enough that their claims will be heard. The dissenters in Lewis v. Casey argued that whether their actual claims of inadequate access had merit should not prevent them from having standing to argue the claims of others: they clearly cared enough about the outcome that standing as earlier articulated in Flast v. Cohen, 392 U.S. 83, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968), is satisfied. Certainly the years of litigation in this case show that the "dispute sought to be adjudicated . . . [has been] presented in an adversary context and in a form historically viewed as capable of judicial resolution." Id. at 101. Under the rule announced in Lewis v. Casey, inmates who because of illiteracy, language problems or other reasons are unable to have a claim heard are unlikely also to be able to complain about lack of access to the courts. As the dissenters in Lewis v. Casey noted, the inability to obtain class wide relief in a case such as this may also lead to more individual suits.
I am nevertheless bound by my understanding of the Supreme Court's decision in Lewis v. Casey. Accordingly, based on the findings articulated in this opinion, this case will be dismissed.
Elaine E. Bucklo
United States District Judge
Dated: June 26, 1997