Cannon v. Richardson

Filing 31

ORDER signed by Magistrate Judge Stephen C Dries on 6-9-2020 denying 26 Motion for Hearing; denying 26 Motion to Supplement; granting 26 Motion to Appoint Counsel ; granting 30 Motion to File. (cc: all counsel, FDS, via US Mail to petitioner) (Dries, Stephen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BILLY CANNON,
Petitioner,
v.

Case No.

15-C-537

REED RICHARDSON,
Respondent.
ORDER DIRECTING APPOINTMENT OF COUNSEL
The petitioner filed this habeas corpus action on May 4, 2015. The action remained
largely dormant for more than four years until April 28, 2020, when the petitioner filed a
motion seeking an evidentiary hearing, appointment of counsel, and to supplement to the
record. I directed the State to respond to the motion, and the petitioner has now filed a reply
(styled as a “motion to reply.”) Although the State believes the petitioner’s guilty plea bars
consideration of his ineffective assistance and Brady claims, in some cases ineffective
assistance or Brady violations can themselves be grounds for excusing a procedural default.
Crivens v. Roth, 172 F.3d 991, 995 (7th Cir. 1999) (“We will not penalize Crivens for presenting
an issue to us that he was unable to present to the state courts because of the state's
misconduct.”) It is unclear if this is one of those circumstances. A petitioner must also show
prejudice to get past a procedural default, and here the petitioner has not adequately explained
how his case was impacted by the alleged constitutional violations. Finally, for a Brady claim,
a petitioner must demonstrate that evidence was wrongfully withheld, and it remains unclear

whether the State did that in this case. In short, despite extensive briefing, the factual and
legal underpinnings of the petitioner’s arguments remain opaque. I conclude, therefore, that
the interests of justice would be served by appointing counsel to sort out and explain the
nature of the petitioner’s ineffective assistance and Brady claims, and whether those claims
should be heard in this habeas action despite the apparent procedural default.
Accordingly, assuming the petitioner qualifies financially, the Federal Defender
Services of Wisconsin is directed to appoint counsel to represent the petitioner pursuant to
the Criminal Justice Act. Once appointed, counsel may propose a schedule for further briefing
on this petition.

SO ORDERED this 9th day of June, 2020.

STEPHEN C. DRIES
United States Magistrate Judge

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