Otero v. United States of America

Filing 2

ORDER signed by Judge Pamela Pepper on 8/2/2016 ORDERING that Federal Defender Services of Wisconsin shall provide counsel to review the petitioner's file, the petition, the government's response in the Seventh Circuit and the Seventh Circ uit's decision, and to either file the appropriate supplement to the petitioner's pleadings or notify the court that counsel will not be filing anything further on the petitioner's behalf no later than 10/7/2016. Please refer to this order for additional details. (cc: all counsel)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
WILLIAM OTERO,

Case No. 16-cv-994-pp
Petitioner,

v.
UNITED STATES OF AMERICA,
Respondent.
______________________________________________________________________________
ORDER APPOINTING COUNSEL
______________________________________________________________________________
On July 28, 2016, the petitioner filed with this court a motion to vacate,
set aside or correct his sentence pursuant to 28 U.S.C. §2255. Dkt. No. 1. This
is the petitioner’s second §2255 motion since his conviction; attached to the
motion were the government’s request that the Seventh Circuit not give the
petitioner permission to file a second or successive petition (Dkt. No. 1-2); a
portion of the petitioner’s presentence investigation report (Dkt. No. 1-3); and
the Seventh Circuit’s order allowing the petitioner, over the government’s
objection, to file the successive petition (Dkt. No. 1-1).
On August 21, 2015, Chief Judge William C. Griesbach issued an
administrative order, stating, “[T]he appointment of counsel is hereby ordered
for any defendant who was previously found eligible for appointed counsel or
who is now indigent, so that counsel may explore and, as appropriate, pursue
claims for relief under 18 U.S.C. § 2255 or 28 U.S.C. §2241, in light of Johnson

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v. United States, 135 S. Ct. 2551 (2015) and Price v. United States, ___ F.3d ___,
2015 WL 4621024 (7th Cir. Aug. 4, 2015).”
In this case, the petitioner argues that his sentence was based on an
unconstitutionally vague provision of the U.S. Sentencing Guidelines, and cites
to Johnson v. United States and Welch v. United States, ___ U.S. ___, 136 S.
Ct. 1257 (April 18, 2016). The petitioner also had appointed counsel at the time
of his original prosecution. See United States v. Otero, Case No. 04-cr-281-1RTR (E.D. Wis.).
The court ORDERS that Federal Defender Services of Wisconsin shall
provide counsel to review the petitioner’s file, the petition itself, the
government’s response in the Seventh Circuit, and the Seventh Circuit’s
decision, and either to file the appropriate supplement to the petitioner’s
pleadings or notify the court that counsel will not be filing anything
further on the petitioner’s behalf (if counsel’s review of the file and the case law
leads him or her to believe that there is no basis for a further pleading). The
court further ORDERS that the United States Probation Office for the Eastern
District of Wisconsin and the United States District Court Clerk’s Office for the
Eastern District of Wisconsin make available to appointed counsel judgments,
statements of reasons, and presentence reports, as well as any sealed filings,
as appointed counsel finds necessary to fulfill his or her role in this regard. The
court ORDERS that appointed counsel shall, no later than October 7, 2016,
file either a supplemental pleading, a request for an extension of time, or a

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notice that counsel will not be filing any pleadings on the petitioner’s behalf.
Dated in Milwaukee, Wisconsin this 2nd day of August, 2016.

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