Brown v. Foster

Filing 25

ORDER signed by Judge Pamela Pepper on 5/22/2017 GRANTING 15 Petitioner's motion to amend the petition; DENYING WITHOUT PREJUDICE 16 Motion to appoint counsel; GRANTING 17 Motion to clarify screening order; and DENYING 21 22 Motions to release petitioner pending 2254 relief. The court DIRECTS the clerk of court to docket the petitioner's amended petition [15-1] as the operative petition. Please see the order at pages 11-12 for briefing deadlines. (cc: all counsel; by US Mail to petitioner)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ENNIS BROWN,

Case No. 16-cv-1497-PP

Petitioner,
v.
BRIAN FOSTER,
Respondent.
ORDER GRANTING PETITIONER’S MOTION TO AMEND
THE PETITION (DKT. NO. 15), DENYING WITHOUT PREJUDICE MOTION
TO APPOINT COUNSEL (DKT. NO. 16), GRANTING MOTION TO CLARIFY
SCREENING ORDER (DKT. NO. 17), AND DENYING MOTIONS TO RELEASE
PETITION PENDING 2254 RELIEF (DKT. NOS. 21, 22).
On November 8, 2016, Petitioner Ennis Brown filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. §2254. Dkt. No. 1. He alleged that he was
convicted and sentenced in violation of the Fourth and Sixth Amendments. Id.
On January 9, 2017, the court screened his petition and ordered the
respondent to file an answer within sixty days of the order. Dkt. No. 9. The
Wisconsin Department of Justice accepted service on January 11, 2017. Dkt.
No. 10. There now are several motions pending.
The petitioner has filed: a motion to amend his petition, Dkt. No. 15; a
motion to appoint counsel, Dkt. No. 16; and two motions asking the court to
release him from custody pending its ruling on his habeas petition, Dkt. Nos.
21, 22. The respondent has filed: filed a motion to clarify the screening order,
Dkt. No. 17; and a brief in opposition to the petition, Dkt. No. 24.
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A.

MOTION TO AMEND PETITION
In the screening order, the court allowed the petitioner’s Fourth

Amendment illegal arrest and detention claim to proceed, but it warned the
petitioner that unless he could show that he had tried to litigate these claims in
state court (or lacked the full and fair opportunity to do so), those claims likely
were barred. Dkt. No. 9 at 3. The court also allowed the petitioner’s Sixth
Amendment ineffective assistance of counsel and speedy trial claims to
proceed. Id. at 2. The court did not allow the petitioner to proceed on his claim
of miscarriage of justice. Id.
On February 2, 2017, the petitioner filed a motion to amend the petition
(dated February 1, 2017). Dkt. No. 15. He attached a proposed amended
petition to the motion. Dkt. No. 15-1. Although the petitioner stated that he
was adding five new grounds to the amended petition, dkt. no. 15 at 1, the
court can find only two new claims: an Eighth Amendment double jeopardy
claim, dkt. no. 15-1 at 40, and a Fourteenth Amendment insufficient evidence
claim, id. at 46. The remaining “grounds” really are supplemental to the
arguments that the petitioner made in the original petition—presumably to
address the issues raised in the court’s screening order. The petitioner’s
prosecutorial misconduct claim augments his Sixth Amendment ineffective
assistance claim. Id. at 32. The absence of jurisdiction claim augments the
petitioner’s Fourth Amendment illegal detention claim. Id. at 40. The abuse of
discretion claim augments the speedy trial violation claim. Id. at 41.

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A petitioner may amend his complaint under 28 U.S.C. §2242, which
provides that a petition “may be amended or supplemented as provided in the
rules of procedure applicable to civil actions.” Federal Rule of Civil Procedure
15(a) allows amendments to pleadings as a matter of course if the party files
them within twenty-one days of service of the original complaint. If the party
files the amendment outside of that twenty-one-day period, “only with the
opposing party’s written consent or the court’s leave. The court should freely
give leave when justice so requires.” This court may deny leave to file an
amended pleading in the event of “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [and] futility of amendment.” Bausch v. Stryker
Corp., 630 F.3d 546, 562 (7th Cir. 2010) (quoting Airborne Beepers & Video,
Inc. v. AT&T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007)(quoting Foman v.
Davis, 371 U.S. 178, 182 (1962))). While a court may deny a motion for leave to
file an amended complaint, courts don’t favor denials. Id.
The service date of the original petition was January 11, 2017. Dkt. No.
10. The petitioner didn’t need the court’s permission to file his amended
complaint if he filed by February 1, 2017. See Fed. R. Civ. P. 15(a). The
petitioner dated his motion February 1, 2017; the court received it on February
2, 2017. Dkt. No. 15.
The Seventh Circuit has adopted the mailbox rule—a rule that deems a
document “filed” on the date it was put in the mail—for habeas petitioners,
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when the question is whether the prisoner’s suit is barred by the statute of
limitations. Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999) (“We join the
overwhelming authority that the Houston mailbox rule should be extended to
prisoners filing pro se habeas petitions, and, for statute of limitations purposes,
a petition is deemed filed when given to the proper prison authorities and not
when received by the district court clerk.”) The court has reached a similar
conclusion with regard to whether a prisoner has met a filing deadline. In
Taylor v. Brown, 787 F.3d 851 (7th Cir. 2015), the court stated:
We have not yet had occasion to apply the prison mailbox
rule to documents that are e-filed by prison staff rather than
sent through the prison mailroom. However, pro se prisoners
are no more able to guarantee that properly tendered
documents are e-filed than that they're mailed. Accordingly,
we conclude that a pro se prisoner's legal documents are
considered filed on the date that they're tendered to prison
staff in accordance with reasonable prison policies,
regardless of whether they are ultimately mailed or
uploaded.
Id. at 859.
The court does not know when the petitioner gave his amended
complaint to prison staff. But given that he dated his pleading the day before
the court received it, it would not be surprising if he’d given the document to
institution staff the day he signed it, and staff e-mailed it the next day. If that
is what happened, then the petitioner does not need the court’s permission to
amend his complaint.
Even if the court concluded that the petitioner filed his amended
pleading more than twenty-one days after the original complaint, however, the
court still would allow the petitioner to amend his complaint. It appears that
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this court’s screening order is what motivated the petitioner to file an amended
complaint. There is no indication that he filed the amended complaint in order
to delay proceedings or to harass the opposing party. The new claims that he
raises involve facts and circumstances he already had raised in the initial
petition. This means that the amended petition relates back to the initial
petition, avoiding any potential statute of limitations issues. Mayle v. Felix, 545
U.S. 644, 664, 125 S. Ct. 2562, 2574, 162 L. Ed. 2d 582 (2005) (“So long as
the original and amended petitions state claims that are tied to a common core
of operative facts, relation back will be in order.”); Tucker v. Kingston, 538 F.3d
732, 734 (7th Cir. 2008) (“It seems unlikely that all of the claims raised in the
second petition would be untimely. At least two of the “new” claims are almost
identical to claims he raised in the first petition (admissibility of statements to
police and the voluntariness of the plea), so it appears at least those two claims
are ‘tied to a common core of operative facts’-indeed the same facts-as their
counterparts in the first petition.”) The court will grant the petitioner’s motion
to amend.
B.

MOTION TO APPOINT COUNSEL
The petitioner requests appointment of counsel, indicating that he

cannot afford to pay an attorney. Dkt. No. 16 at 1. He further explains that he
contacted nine attorneys, all of whom declined to take his case. Id.; Dkt. No.
16-1. The petitioner states that he has limited legal knowledge, and limited
access to the courts due to his incarceration. Id. The court will deny the motion
to appoint counsel.
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Civil litigants do not have a constitutional or statutory right to appointed
counsel, but the court has the discretion to request lawyers to represent
indigent litigants in appropriate cases under 28 U.S.C. §1915(e)(1). Pruitt v.
Mote, 503 F.3d 647, 653 (7th Cir. 2007) (en banc); Lutrrell v. Nickel, 129 F.3d
933, 936 (7th Cir. 1997) (citing Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir.
1995)). As a threshold matter, a litigant must make a reasonable attempt to
obtain a lawyer on her own. Pruitt, 503 F.3d at 654-55; Zarnes, 64 F.3d at
288. After a litigant has tried to find a lawyer and has been unsuccessful, or
shows that he was effectively prevented from trying to find a lawyer, the court
must decide the next question: is the case so complicated, both factually and
legally, that the litigant does not appear able to handle the case himself? Pruitt,
503 F.3d at 654 (citing Farmer v. Hass, 990 F.2d 319, 322 (7th Cir. 1993)). The
court cannot appoint a lawyer for every person who asks, because the court’s
resources are limited. That is why the court requires a litigant representing
himself to explain why his particular case is so difficult or complex that he
cannot present it on his own.
As to the first Pruitt factor: The Seventh Circuit has not clearly defined
the phrase “reasonable attempt to obtain counsel,” but it has affirmed one
court’s requirement that the litigant provide the names and addresses of at
least three attorneys that the litigant contacted and who turned him down.
Romanelli v. Suilene, 615 F.3d 847, 852 (7th Cir. 2010). The petitioner states
that he has contacted nine attorneys, and he attaches letters from these

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attorneys as proof. Dkt. No. 16-1. The petitioner has met this first Pruitt
requirement.
The court must now consider the second Pruitt factor: whether this case
is so factually or legally complicated that the petitioner is not able to present it
himself. In Proceeding without representation in federal court is a difficult
battle. The court understands that many people would have trouble presenting
legal theories without counsel. But the Pruitt test requires the court to
determine (1) whether the petitioner’s particular habeas case is more complex
than similar petitions, and (2) whether the petitioner’s competency level seems
below that of other petitioners who litigate such claims pro se. See Jackson v.
Kotter, 541 F.3d 688, 700 (7th Cir. 2008) (As part of its exercise in discretion,
the district court was required to consider both “the difficulty of the plaintiff’s
claims and the plaintiff’s competence to litigate those claims himself”) (citing
Pruitt, 503 F.3d at 655).
The petitioner’s motion does not provide the court with any reason to
conclude that he will have more difficulty presenting his habeas petition than
the average pro se petitioner. The petitioner’s motion to amend his petition
clearly explained his reason for filing the motion and provided relevant law in
support. The court does not find that this particular habeas case is any more
difficult than a typical case, and most habeas cases are filed by people who are
representing themselves. If things change—if the case reaches a point where
the court thinks that it has become too complicated for the petitioner to pursue

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on his own—the court may reconsider this ruling. At this point, however, the
court will deny the motion to appoint counsel without prejudice.
C.

MOTION TO CLARIFY SCREENING ORDER
When the court issued the order screening the amended petition, it

ordered the respondent to answer within sixty days of January 9, 2017. Dkt.
No. 9 at 4-5. The petitioner filed his amended complaint on February 2, 2017.
Dkt. No. 15. As of March 2, 2017, the court had not screened the amended
complaint. Faced with both an original and amended complaint, along with an
order requiring him to respond by a certain date, the respondent filed a motion,
asking the court to clarify which petition (the original or the amended) the
court wanted him to answer. Dkt. No. 17 at 4. The court did not rule on that
motion before the sixty-day deadline for answering the original complaint;
accordingly, on March 9, 2017, the respondent filed an answer addressing the
original complaint. Dkt. No. 19 at 1. In the event that the court granted the
motion to amend, the respondent requested permission to amend his answer.
Id. Because, as explained above, the court is granting the motion to amend, the
court will set a new briefing schedule allowing the respondent additional time
to amend his answer.
D.

MOTION FOR RELEASE PENDING 2254 RELIEF
In his two motions for release pending 2254 relief,1 the petitioner asks

the court to release him because the combination of his time served and the

The motions are very similar; there are only minor differences between the
two.
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multiplicity and duplicity issues with his case demonstrate that he deserves
special treatment. Dkt. No. 21 at 2; Dkt. No. 22 at 2. The court disagrees.
“There is abundant authority that federal district judges in habeas
corpus and section 2255 proceedings have inherent power to admit applicants
to bail pending the decision of their cases, but a power to be exercised very
sparingly.” Cherek v. U.S., 767 F.2d 335, 337 (7th Cir. 1985); see Kramer v.
Jenkins, 800 F.2d 708, 709 (7th Cir. 1986) (interpreting Cherek to allow federal
district judges to admit bail to both state and federal petitioners); see also
Bolante v. Keisler, 506 F.3d 618, 620 (7th Cir. 2007) (“Inherent judicial
authority to grant bail to persons who have asked for relief in an application for
habeas corpus is a natural incident of habeas corpus … A judge ought to be
able to decide whether the petitioner should be allowed to go free while his
claim to freedom is being adjudicated.”).
A defendant whose conviction has been affirmed on
appeal (or who waived his right of appeal, as by
pleading guilty, or by foregoing appeal after being
convicted following a trial) is unlikely to have been
convicted unjustly; hence the case for bail pending
resolution of his postconviction proceeding is even
weaker than the case for bail pending appeal. And the
interest in the finality of criminal proceedings is poorly
served by deferring execution of sentence till long after
the defendant has been convicted.
Id.
Thus, courts should consider the requirements of the federal statute that
governs bail pending appeal for a federal conviction (18 U.S.C. §3143(b)) as a
preliminary barrier to addressing the merits of a motion for release. Id. at 33738 (“a defendant who cannot bring himself within its terms is not entitled to
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bail pending . . . decision of his postconviction motion.”). Under 18 U.S.C.
§3141(b), the court may allow release pending appeal only if it finds (A) “by
clear and convincing evidence that the person is not likely to flee or pose a
danger” the community; and (B) “that the appeal is not for the purpose of delay
and raises a substantial question of law or fact likely to result in” a favorable
determination.
Release pending §2254 relief is not appropriate in this case. First, the
petitioner has not provided any evidence that he is not likely to flee or pose a
danger to the community if released. Second, even if the petitioner could
assure the court of those things, the threshold for habeas relief is high. See 28
U.S.C. §2254(d). The petitioner’s thin recitation of his claims and his citations
of case law do not give the court confidence that he will be able to meet this
high burden and obtain relief. The court will deny the motions.
E.

CONCLUSION

The court GRANTS the petitioner’s motion to amend the petition. Dkt.
No. 15.
The court DENIES WITHOUT PREJUDICE the petitioner’s motion to
appoint counsel. Dkt. No. 16.
The court GRANTS the respondent’s motion to clarify. Dkt. No. 17.
The court DENIES the petitioner’s motions for release pending §2254
relief. Dkt. Nos. 21, 22.
The court DIRECTS the Clerk of Court to docket the petitioner’s
amended petition, dkt. no. 15-1, as the operative petition.
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The court ORDERS that within thirty (30) days of the date of this order,
the respondent shall file an AMENDED ANSWER to the petition, complying
with Rule 5 of the Rules Governing §2254 Cases, and showing cause, if any,
why the writ should not issue.
The court ORDERS that the parties must comply with the following
schedule for supplementing their briefs on the merits of the petitioner’s claims:
(1) the petitioner has forty-five (45) days after the respondent files his
answer to file a supplement to his brief in support of his petition (if he chooses
to do so);
(2) the respondent has forty-five (45) days after the petitioner files his
supplement to his initial brief to file the respondent’s supplement to its brief in
opposition (if the respondent thinks it necessary); and
(3) the petitioner has thirty (30) days after the respondent files his
supplement to his opposition brief to file a supplemental reply brief, if the
petitioner chooses to file such a brief.
The parties shall not repeat arguments they made regarding the claims
in the initial petition. The supplemental filings shall address only those new
issues the petitioner raised in the amended petition.
If, instead of filing an answer to the amended petition, the respondent
files a dispositive motion, the respondent must include a brief and other
relevant materials in support of the motion. The petitioner then must file a
brief in opposition to that motion within forty-five (45) days of the date the
respondent files the motion. If the respondent chooses to file a reply brief, he
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must do so within thirty (30) days of the date the petitioner files the
opposition brief.
Under Civil Local Rule 7(f), briefs in support of or in opposition to the
habeas petition and any dispositive motions shall not exceed thirty (30) pages,
and reply briefs may not exceed fifteen (15) pages, not counting any
statements of facts, exhibits and affidavits.
Under the Memorandum of Understanding between the Attorney General
and this court, the Attorney General for the State of Wisconsin and Brian
Foster, Warden of the Waupun Correctional Institution will receive copies of the
petition and this order electronically.
Dated in Milwaukee, Wisconsin this 22nd day of May, 2017.

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