Cannon v. Richardson

Filing 20

ORDER signed by Judge Pamela Pepper on 10/19/2015 DENYING 13 Motion to Appoint Counsel and DENYING 16 Motion for Discovery. (cc: all counsel; by US Mail to petitioner) (pwm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BILLY CANNON,

Case No. 15-cv-537-pp
Petitioner,

v.
REED RICHARDSON,
Respondent.

DECISION AND ORDER DENYING PETITIONER’S SECOND MOTION TO
APPOINT COUNSEL (DKT. NO. 13), DENYING PETITIONER’S MOTION FOR
DISCOVERY (DKT. NO. 16), AND DENYING PETITIONER’S MOTION FOR
JUDICIAL QUESTION (DKT. NO. 18)
_____________________________________________________________________________
I.

SECOND MOTION TO APPOINT COUNSEL
On September 8, 2015, the petitioner filed a second motion to appoint

counsel. Dkt. No. 13. The Criminal Justice Act allows a court to appoint
counsel for a person seeking relief under §2254 if “the court determines that
the interests of justice so require” and if the person is “financially eligible.” 18
U.S.C. §3006A(a)(2). Appointment of counsel for habeas petitioners is within
the district court’s discretion, and is governed by standards similar to those
followed with plaintiffs proceeding in forma pauperis in civil cases. Wilson v.
Duckworth, 716 F.2d 415, 418 (7th Cir. 1983); Jackson v. Cnty. of McLean,
953 F.2d 1070, 1071 (7th Cir. 1992). The Seventh Circuit has found that “due
process does not require appointment of counsel for indigent prisoners
pursuing state postconviction remedies or federal habeas relief.” Pruitt v. Mote,
503 F.3d 647, 657 (7th Cir. 2007). While “an indigent civil litigant may ask the
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district court to request an attorney to represent him pro bono publico,” “no
constitutional or statutory right to court-appointed counsel” exists “in federal
civil litigation.” Id. at 649.
To determine whether it will appoint counsel in a habeas case, the court
asks: “(1) has the indigent plaintiff made a reasonable attempt to obtain
counsel or been effectively precluded from doing so; and if so, (2) given the
difficulty of the case, does the plaintiff appear competent to litigate himself?”
Id. at 654. The Seventh Circuit has not explicitly defined “reasonable attempt
to obtain counsel.” It has affirmed one court’s requirement that the petitioner
provide the names and addresses of at least three attorneys that the petitioner
reached out to and who turned him down. Romanelli v. Suilene, No. 07-C-19,
2008 WL 4681778 (W.D. Wis. Mar. 23, 2007), aff’d, 615 F.3d 847, 852 (7th Cir.
2010).
On May 22, 2015, the court denied without prejudice the petitioner’s first
motion to appoint counsel, because the petitioner had not shown that he had
met the first Pruitt requirement—that he had “made reasonable attempts to
find his own lawyer.” Dkt. No. 8 at 3. With the second motion to appoint
counsel, the petitioner asserts that his daughter helped him contact three
attorneys and that none of those efforts resulted in the retention of counsel.
Dkt. No. 13 at 3.
First, the petitioner reached out to Attorney William Burke. Dkt. No. 13
at 3. According to the petitioner, he and his daughter paid a retainer to
Attorney Burke and then lost contact with counsel. Id. The petitioner attached
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several letters to his motion. The first letter, addressed to Attorney Burke,
shows the petitioner’s efforts to retain counsel for assistance with two petitions
for habeas relief. Dkt. No. 13-1 at 1-2. The second letter, addressed to the
petitioner, shows Attorney Burke requesting a retainer of $2,500 per petition or
$5,000 total. Id. at 3-4. The petitioner also attached a copy of a cashier’s check
in the amount of $2,500 to Attorney Burke, dated July 9, 2015. Id. at 5. The
petitioner alleges that he subsequently lost contact with Attorney Burke. Dkt.
No. 13 at 3. Attorney Burke has not made an appearance in this case.
The petitioner also attached a copy of a letter to Attorney Joshua Uller,
dated June 12, 2015. Dkt. No. 13-1 at 6. Along with that letter, the petitioner
provided a copy of the envelope, indicating that the postal service had returned
the letter to the petitioner indicating that no such address existed. Id. at 8. See
also Dkt. No. 13 at 3. Attorney Uller has not made an appearance. Finally, the
petitioner attached a copy of a letter addressed to Attorney Michael Backes,
dated June 12, 2015. Dkt. No. 13-1 at 9. The petitioner alleges that he never
received a response from Attorney Backes. Dkt. No. 13 at 3. Attorney Backes
has not appeared. As a result of the facts alleged and the evidence attached to
his motion to appoint counsel, the court finds that the petitioner has satisfied
the first Pruitt requirement and has made reasonable efforts to retain counsel.
The court next must determine whether the second Pruitt requirement is
satisfied—is the case so complex that the petitioner is not competent to handle
it himself. In his second motion to appoint counsel, the petitioner asserts that
the case will require expert witnesses, “lots of investigation,” and evaluation of
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evidence. Dkt. No. 13 at 4. He states that he cannot present the case himself
“because of the overwhelming amount of documents obtained . . ., the limited
resources of the Law Library within the institution . . .,” and the “complexity of
this case.” Id.
While the court understands that the petitioner is not an attorney and
that he has limited resources, at this time, the case remains in the early
stages, and has not yet reached a stage where any party would need to present
evidence. The court notes that the petitioner’s motion to appoint counsel, as
well as his letters to lawyers, are well-written and well-argued. As discussed
further below, the petitioner also has demonstrated, in his motion for discovery
(Dkt. No. 16), that he has the ability to review the documents, to analyze the
pleadings and the exhibits, to formulate legal argument and to file relevant
pleadings. The respondent has filed his brief in support of his petition and in
response to the respondent’s answer, along with an offer of proof; this
demonstrates that the respondent was able to understand and respond to the
petitioner’s arguments thus far. Dkt. Nos. 14, 15. All of these filings
demonstrate the petitioner’s ability to proceed on his own. The court will deny
without prejudice the motion to appoint counsel. If the court later requires an
evidentiary hearing or witness testimony, the petitioner may renew his motion
at that time.
II.

MOTION FOR DISCOVERY
In addition to filing a second motion to appoint counsel, the petitioner

also filed a motion for discovery. Dkt. No. 16. The petitioner notes that, on July
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24, 2015, the respondent filed an answer to the petition. Id. at 2; see also Dkt.
No. 12. He alleges that the respondent did not “indicate what transcripts are
available,” did not state “when [the transcripts] can be furnished,” and did not
“furnish those portion[s] of the transcripts which [the respondent] believe[s]
relevant.” Dkt. No. 16 at 2. The petitioner provides a list of transcripts “that
can be checked against factual allegation” and another list of “transcript[s]
missing.” Id. at 3-4.
The petitioner consistently references Rules 5 and 6 of the Federal Rules
of Civil Procedure. The court believes that the petitioner actually means to cite
Rules 5 and 6 of the Rules Governing Section 2254 Cases. Rule 5(c) of the
Rules Governing Section 2254 Cases requires the respondent’s answer to
“indicate what transcripts (of pretrial, trial, sentencing, or post-conviction
proceedings) are available, when they can be furnished, and what proceedings
have been recorded but not transcribed,” and “[t]he respondent must attach . .
. [the] parts of the transcript that the respondent considers relevant.” Id. The
court “may order that the respondent furnish other parts of existing transcripts
or that parts of untranscribed recordings be transcribed and furnished.” Id.
Finally, “[i]f a transcript cannot be obtained, the respondent may submit a
narrative summary of the evidence.” Id. If a party seeks discovery, he “must
provide reasons for the request.”
Rule 6 of the Rules Governing Section 2254 Cases gives a district court
judge the discretion to, “for good cause, authorize a party to conduct discovery
under the Federal Rules of Civil Procedure and may limit the extent of
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discovery.” “If necessary for effective discovery, the judge must appoint an
attorney for a petitioner who qualifies to have counsel appointed.” Id. The
petitioner, as the party requesting the discovery, “must provide reasons for the
request,” “must also include any proposed interrogatories and requests for
admission, and must specify any requested documents.” Rule 6(b), Rules
Governing Section 2254 Cases.
The United States Supreme Court requires the district court “to provide
the necessary facilities and procedures for an adequate inquiry” if the
petitioner has presented “specific allegations” that give “the court . . . reason to
believe that the petitioner may, if the facts are fully developed, be able to
demonstrate that he is confined illegally and is therefore entitled to relief.”
Harris v. Nelson, 394 U.S. 286, 300 (1969). But “[a] habeas petitioner, unlike
the usual civil litigant in federal court, is not entitled to discovery as a matter
of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). “In order to
meet the Rule 6(a) requirements, [the petitioner] must (1) make a colorable
claim showing that the underlying facts, if proven, constitute a constitutional
violation; and (2) show ‘good cause’ for the discovery.” Henderson v. Walls, 296
F.3d 541, 553 (quoting Harris, 394 U.S. at 298-300)), vacated for other
reasons, 123 S. Ct. 1354 (2003). A court will deny a motion for discovery “if
based on conclusory allegations or a laundry list of records sought, since it
would contravene the purpose of the good cause standard.” Payano v. Grams,
No. 10-C-475, 2011 WL 5854980 (E.D. Wis. Nov. 22, 2011) (citing Ward v.
Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994)).
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The respondent’s answer in this case includes a section entitled,
“Transcripts.” Dkt. No. 6-7. According to the respondent, Exhibits 9 through 30
contain transcripts from the petitioner’s initial appearance, the preliminary
hearing and bail motion, the preliminary hearing and arraignment, a
scheduling conference, two bail hearings, a status conference, the final pretrial,
several motion hearings, the three-day jury trial, the guilty-plea hearing, a
status conference and adjournment, further proceedings, and the sentencing
hearing. Id. The respondent attached each of these transcripts to the answer.
See Dkt. Nos. 12-9 through 12-35. The respondent asserts that “these are all
the transcripts in the Milwaukee County Circuit Court file for Cannon’s case.”
Dkt. No. 12 at 7.
The court finds that the respondent has complied with Rule 5(c) of the
Rules Governing 2254 Cases. The court also finds that Rule 6(b) requires the
petitioner to state reasons for seeking discovery and to provide more than a list
of requested or missing documents. Although the petitioner in this case has
provided a list of transcripts he thinks are necessary and missing from the
respondent’s answer, he has not provided any reasons for why the missing
transcripts are necessary, nor has he specifically connected the missing
portions to his constitutional claims. In spite of the fact that he did not have
these transcripts, the petitioner was able to write and file a response to the
respondent’s answer (Dkt. No. 14) and an offer of proof (Dkt. No. 15). Therefore,
the court will deny without prejudice the petitioner’s motion for discovery.

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III.

MOTION OF JUDICIAL QUESTION
Finally, on September 18, 2015, the petitioner filed a “Motion of Judicial

Question of Permission to Proceed.” Dkt. No. 18. The petitioner seeks leave “to
file a cognizable claim to test the illegality of his detention . . . because the
constitutional violation give [sic] rise to exceptional-aggravated circumstances
under” 42 U.S.C. §1983. Id. He wishes “to proceed in this court” because this
court has familiarity “with the facts of this case and the constitutional violation
involved.” Id.
“[W]hen a state prisoner is challenging the very fact or duration of his
physical imprisonment, and the relief he seeks is a determination that he is
entitled to . . . release . . . his sole federal remedy is a writ of habeas corpus.”
Preiser v. Rodriquez, 411 U.S. 475, 500 (1973). In contrast, a prisoner who
challenges “the conditions under which he is being held . . . must use a §1983 .
. . theory.” Glaus v. Anderson, 408 F.3d 382, 386 (7th Cir. 2005). “[A] petitioner
requests either a ‘quantum change in the level of custody,’ which must be
addressed by habeas corpus, or ‘a different program or location or
environment,’ which raises a . . . claim” under §1983. Id. at 388 (quoting
Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991).
In addition to the legal reasons for keeping habeas petitions separate
from civil rights claims brought under §1983, the court notes several practical
reasons for not allowing the petitioner to bring his civil rights claim within his
habeas case. A habeas case has a $5 filing fee, while §1983 cases have a $350
filing fee. While the court may waive the $5 fee in habeas cases, the Prison
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Litigation Reform Act (28 U.S.C. §1915) prohibits a federal court from waiving
the $350 fee in §1983 cases, and the prisoner cannot use a “combo” or “hybrid”
case to avoid paying the larger §1983 filing fee. Further, habeas cases have
different standards of review than §1983 cases, and there are different
procedures for screening, briefing and processing the two kinds of cases.
If the petitioner wishes to raise constitutional issues regarding his
detention at Stanley Correction Institution, he may file a separate case under
42 U.S.C. §1983. There is no guarantee that such a case will be assigned to
this court; cases are assigned randomly, and parties do not get to choose which
judge handles their cases.
IV.

CONCLUSION
The court DENIES WITHOUT PREJUDICE the petitioner’s second

motion for appointment of counsel (Dkt. No. 13).
The court also DENIES WITHOUT PREJUDICE the petitioner’s motion
for discovery (Dkt. No. 16).
Finally, the court DENIES the petitioner’s Motion for Judicial Question
(Dkt. No. 18).
Dated at Milwaukee, this 19th day of October, 2015.

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