Seifer v. United States of America

Filing 10

ORDER signed by Judge J.P. Stadtmueller on 12/23/2016 DENYING 7 Petitioner's Motion for Reconsideration. See Order. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHRISTOPHER A. SEIFER,
Petitioner,
v.

Case No. 16-CV-1465-JPS

UNITED STATES OF AMERICA,
Respondent.

ORDER

On December 14, 2016, the Court granted the respondent’s motion to
compel (the “Order”). (Docket #5). That same day, the petitioner filed a
motion to reconsider the Order. (Docket #7). The Court will also consider his
response to the motion to compel, simultaneously filed on December 14,
2016. (Docket #6). The respondent submitted a response to the motion for
reconsideration on December 20, 2016, and the petitioner offered his reply
the next day. (Docket #8 and #9).
The Court declines to countermand the Order. Rule 7 of the Rules
Governing Section 2255 Proceedings provides that “if the motion is not
dismissed [upon the Court’s initial screening], the judge may direct the
parties to expand the record by submitting additional materials relating to
the motion.” Fed. R. Sec. 2255 Pro. 7(a). The materials may include affidavits.
Id. at 7(b). These materials are important because they form the basis of the
Court’s determination on whether an evidentiary hearing is necessary, as
dictated by Rule 8. See id. at 8(a). Thus, the Court was duly empowered to
issue the Order and it is necessary to the Court’s future determinations in this
matter.

This conclusion is buttressed by Lafuente. There, the Seventh Circuit
described the applicable law:
A § 2255 petitioner is entitled to an evidentiary hearing
on his claim where he alleges facts that, if true, would entitle
him to relief. A hearing, though, is not required when the files
and records of the case conclusively show that the prisoner is
entitled to no relief. The district court also has the authority to
order discovery or something short of a full-blown hearing to
allow an adequate inquiry into a petitioner’s claim, or to help
the court determine whether a full hearing is necessary.
...
We note that a full evidentiary hearing is not the only
option available to the district court to resolve the essential
disputed facts[.] . . . Rule 6 of the Rules Governing Section 2255
Proceedings provides that a judge may authorize further
discovery upon request; Rule 7 authorizes the judge to expand
the record without request. Either option provides a relatively
straightforward way to resolve the crucial issues of fact that
underpin Lafuente's claim.
Lafuente v. U.S., 617 F.3d 944, 946-47 (7th Cir. 2010) (citations and quotations
omitted). These holdings show that the Court is entitled to order that more
evidence be produced, not only upon a party’s request, but on its own
accord.
The petitioner argues that Attorney Sirkin’s affidavit would be
premature. He insists that the Court is bound to give him an evidentiary
hearing because he alleges facts sufficient to state claims of ineffectiveness.
Essentially, he believes that in deciding whether to hold an evidentiary
hearing, the Court is constrained to simply conduct another screening in
disguise. This limitation cannot be real, else the above-cited Rules Governing
Section Section 2255 Proceedings, and the holdings from Lafuente, would be
superfluous. This is also seen in the petitioner’s more recent citations. TorresChavez holds that if “‘the files and records of the case conclusively show that
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the prisoner is entitled to no relief,’ or if the allegations are too vague and
conclusory, then an evidentiary hearing is unnecessary. 28 U.S.C. § 2255(b);
see Ryan v. United States, 657 F.3d 604, 606–07 (7th Cir. 2011).” Torres-Chavez
v. U.S., 828 F.3d 582, 586 (7th Cir. 2016). Like Lafuente, there would be no
reason for Torres-Chavez to include the first clause of the cited sentence,
discussing an evidentiary record, if only the second clause, addressing
allegations, was really necessary.
The Court has also limited the required disclosure to those topics
raised by the petitioner himself in his motion. See (Docket #1 and #1-2); U.S.
v. Pinson, 584 F.3d 972, 978-79 (10th Cir. 2009). The petitioner fails to point
out any particular problem with the terms of the affidavit the Court has
ordered him to procure. Instead, he asserts that because some claims might
not survive to an evidentiary hearing, either by abandonment or otherwise,
the affidavit may be overbroad. This speculation has no bearing on the
question which will soon come before the Court, namely whether to grant the
petitioner an evidentiary hearing. He cannot hold the Court and the
respondent in suspense of his strategic pleading decisions to avoid one of the
most basic requirements of an ineffective assistance claim—disclosure of
attorney-client communications which are the subject of the litigation. In any
event, his motion is not signed by him or accompanied by an affidavit, and
without that evidence, the Court would likely be obliged to dismiss the
motion. Kafo v. U.S., 467 F.3d 1063, 1067-68 (7th Cir. 2006). It is thus in his
interest to obtain Attorney Sirkin’s affidavit just as much as the respondent’s.
In sum, the petitioner may not “hide the ball” on his claims until the
last moment. He cannot in one breath offer no evidence to support his
allegations while simultaneously demanding an evidentiary hearing thereon;
though the burden on him is “relatively light,” it is not imaginary. See TorresPage 3 of 4

Chavez, 828 F.3d at 586. The petitioner must, therefore, produce Attorney
Sirkin’s affidavit as provided in the Order or his motion will be dismissed.
Accordingly,
IT IS ORDERED that the petitioner’s motion for reconsideration
(Docket #7) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 23rd day of December, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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