Powers v. Thurmer

Filing 114

ORDER signed by Magistrate Judge William E Duffin on 5/27/2021. The petitioner Jacob Powers's request that the court appoint substitute counsel is denied. (cc: all counsel, to petitioner via USPS )(mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JACOB POWERS,
Petitioner,
v.

Case No. 10-CV-1127

WILLIAM J. POLLARD,
Respondent.
ORDER
On May 24, 2021 the court received a letter from petitioner Jacob Powers wherein
he complains that his appointed counsel is not communicating with him. (ECF No. 113.)
Powers requests that the court appoint a new lawyer for him.
Ordinarily, the court would be extremely concerned when a lawyer appointed by
the court is alleged to have failed to communicate with a client. Here, however, counsel’s
lack of communication is hardly surprising.
As the court noted more than three years ago when Powers submitted a similar
complaint to the court:
Powers’s federal case is currently stayed and has been since June 1, 2016, to
permit Powers to return to state court to exhaust his state court remedies.
(ECF No. 108.) The court did not appoint counsel to represent Powers in the
state proceedings and thus has no role in supervising that attorney’s
conduct. As for the current federal proceedings, from the court’s
perspective there are no circumstances that necessitate any action by
counsel at the present time. This case is on hold awaiting the decision of the

state courts. The court trusts that once the state court resolves any pending
action counsel in this case will promptly notify Powers and communicate
as necessary to proceed with the present action.
(ECF No. 110 at 1-2.) While the federal case is on hold, counsel’s representation is
effectively on hold, too.
The court has reviewed the online records of Powers’s pending petition for a writ
of habeas corpus in the Wisconsin Court of Appeals, Powers v. Foster, Appeal No.
2016AP1401-W, available at https://wscca.wicourts.gov, and according to those records
the case is still open. Until Powers exhausts his remedies in state court and is ready to
proceed with his federal habeas petition, there is nothing for Powers’s appointed counsel
to do.
Because the court has not appointed counsel to represent Powers in state court
(and it does not appear that the state court has appointed counsel for Powers) that means
Powers is representing himself in the state court proceedings. Therefore, it is Powers’s
responsibility to notify his federally appointed attorney when he has exhausted his
remedies in state court and is ready to proceed with his federal petition.
IT IS THEREFORE ORDERED that Powers’s request that the court appoint
substitute counsel is denied.
Dated at Milwaukee, Wisconsin this 27th day of May, 2021.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge
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