Grady v. United States of America

Filing 8

DECISION AND ORDER dismissing Amended Motion to Vacate, Set Aside or Correct Sentence (2255) without prejudice and denying 7 Motion to Alter Judgment. A second amended petition may be filed on or before May 8, 2015. Signed by Chief Judge William C Griesbach on 4/15/2015. (cc: all counsel, via US mail to Francis Grady along with 2255 form) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
FRANCIS GRADY,
Petitioner,
v.

Case No. 15-C-330

UNITED STATES OF AMERICA,
Respondent.

DECISION AND ORDER DISMISSING AMENDED PETITION

On March 31, this court dismissed Petitioner’s § 2255 motion without prejudice. In the
dismissal order, I noted the extreme length of the petition and the unusual fact that it brought some
50 different claims (a typical petition brings one to four), most of which alleged ineffective
assistance of counsel. I allowed the Petitioner to file an amended petition limiting himself to the
court-provided form, noting that it would be unfair to require the government to respond to such a
lengthy laundry list of claims.
Instead of following this court’s directives, Petitioner filed an amended petition on the
court’s form but then appended fifty-six pages consisting of 46 additional claims, for the same total
of 50 claims that this court noted in the first order. He also filed a “motion to alter or amend a
judgment” in which he takes the court to task for mis-counting the number of pages in his petition,
as well as the number of pages in the court’s own form, which he notes is six pages, rather than the
seven pages the court suggested.

The generally disrespectful tone of the motion to amend is

highlighted by the accusation that the court is “bullying” the petitioner by dismissing the petition

in an effort to whitewash or hide “bad marks” on its “performance.” (ECF No. 7 at 18.)
The court’s concerns about abuse of process are piqued by the additional fact that the
Petitioner has now attempted to style his § 2255 petition as a “death penalty case,” and has filed a
“motion for stay of execution” on behalf of the unborn fetuses on whose behalf he purports to be
suing. This case is not “about” abortion, however, it is about a conviction for arson committed at
an abortion clinic.

The Petitioner’s political, religious and / or philosophical views about the

question of abortion infect much of his petition, yet these are not questions that are germane to the
narrow factual questions posed to the jury, much less the performance of his counsel or any other
conceivable constitutional issues. For example, he alleges his attorney erred by not arguing that
lighting a fire at the abortion clinic was an act of “ceremonial beneficence” that would have
undercut the maliciousness finding.

(ECF No. 5-1 at 1.) He further asserts it was ineffective

assistance for counsel to fail to object to this court’s observation that unborn fetuses were not
considered persons under federal law, and thus a “defense of others” defense was not viable. (ECF
No. 5-1 at 8.) In short, even if Petitioner’s views on the controversial question of abortion were
meritorious, they never posed a defense to the arson charge brought against him, and they are
therefore inappropriate topics for a § 2255 motion. As the court of appeals has already noted,
“Grady has failed to point to any cognizable legal justification for starting the fire at the Planned
Parenthood facility.” United States v. Grady, 746 F.3d 846, 849 (7th Cir. 2014). Simply put, the
court will not allow a motion to vacate under § 2255 to become a vehicle for the petitioner’s
personal views, which do not impact the legal and factual questions conceivably at issue in such a
motion.
Finally, the Petitioner has failed to correct the central error this court identified earlier,
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which is that his ineffective assistance claims are pled summarily. Many of his claims recite an
alleged legal error, but they do not even come close to identifying how counsel’s performance was
so deficient that his Sixth Amendment rights were violated.

Petitioner fails to recognize,

apparently, that the Constitution does not guarantee criminal defendants perfect representation.
After the fact, probably every convicted defendant could point to things they wished their lawyers
had done differently, but that does not mean the lawyer’s conduct has sunk below the constitutional
standards of Strickland v. Washington, 668 U.S. 687 (1984). The petitioner must show that his
counsel's performance fell below the constitutional standards and that he was prejudiced as a result.
466 U.S. at 687. To satisfy the deficient performance prong, the petitioner has the burden to prove
that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the
Sixth Amendment. Id. There is a strong presumption that counsel's performance was reasonable
and adequate. Given these standards, most counsel errors do not rise to the level of constitutionally
deficient performance.
In sum, the letter and spirit of the rules governing § 2255 motions require petitioners to
follow the essence of the form provided by the court, which, as Petitioner notes, is only six pages
long. The form’s length is not some arbitrary figure, but rather an expression of judicial experience
based on what a typical motion would present. Such experience dictates that no § 2255 petitioner
will ever plausibly have so many claims of error that his petition would exceed the form’s length
by a factor of ten. After all, the direct appeal is by far the primary means of correcting trial court
errors, and here, the Petitioner raised but a single argument in his appeal. And principles of judicial
economy and fairness dictate that neither the court nor the government can reasonably be expected
to entertain a pro se petitioner’s vanity filings in the fashion this Petitioner presumes. “We join the
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numerous federal courts which have repeatedly expressed their unwillingness to sift through
voluminous documents filed by habeas corpus petitioners in order to divine the grounds or facts
which allegedly warrant relief.” Adams v. Armontrout, 897 F.2d 332, 333 (8th Cir. 1990).
In sum, the Petitioner will be granted one more opportunity to trim his petition, limiting it
to bona fide matters alleging constitutional violations and, where appropriate, explaining why his
counsel’s performance was so deficient that it resulted in prejudice.

The amended petition is

DISMISSED without prejudice. A second amended petition may be filed on or before May 8,
2015. The motion to amend or correct is DENIED.
SO ORDERED this 15th day of April, 2015.

/s William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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