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Wilson v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION


April 21, 2009

DANIEL W. WILSON, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Jeanne E. Scott: U.S. District Judge

OPINION

Petitioner has filed: (1) a Motion for Leave to Appeal In Forma Pauperis (d/e 17) (IFP Motion); (2) a Request for Certificate of Appealability (d/e 19) (Request); and (3) a Motion to Appoint Counsel on Appeal (d/e 20) (Motion to Appoint). The IFP Motion is ALLOWED. Petitioner has demonstrated that he should be entitled to proceed in forma pauperis on appeal. The Motion to Appoint is referred to the Court of Appeals. The Court of Appeals determines whether to appoint counsel on appeal.

The Request is ALLOWED in part. Pursuant to 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b), the Court hereby certifies that Petitioner has made a substantial showing of a denial of his constitutional rights in connection with his trial and conviction on the charge of first degree murder. Petitioner has made a substantial showing of a denial of a constitutional right, as required in 28 U.S.C. §2253(c)(2), on the following issues:

Was Petitioner's trial counsel ineffective for failing to: (1) obtain a second opinion on Petitioner's sanity; and (2) prepare the only defense witness called to testify at trial.

Petitioner has also sought a certificate of appealability on the issue of whether his counsel was ineffective for failing to call lay witnesses as to his sanity. The Court finds that no reasonable jurist would find its ruling on this issue to be debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). The request for a certificate of appealability on this issue is denied.

THEREFORE, Petitioner's Motion for Leave to Appeal In Forma Pauperis (d/e 17) is ALLOWED; Petitioner's Request for Certificate of Appealability (d/e 19) is ALLOWED in part; and (3) the Motion to Appoint Counsel on Appeal (d/e 20) is referred to the Court of Appeals. Petitioner may proceed in forma pauperis on appeal. A Certificate of Appealability is issued for the following issues: Was Petitioner's trial counsel ineffective for failing to: (1) obtain a second opinion on Petitioner's sanity; and (2) prepare the only defense witness called to testify at trial. The remainder of the Request is DENIED.

IT IS THEREFORE SO ORDERED.

JEANNE E. SCOTT UNITED STATES DISTRICT JUDGE

20090421

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