Brown v. Foster

Filing 59

ORDER signed by Judge Pamela Pepper on 2/27/2018. 30 Petitioner's Motion for Recusal DENIED. 40 43 45 57 Petitioner's Motions for Release Pending §2254 Relief DENIED. 31 Petitioner's Motion for Evidentiary Hearing DENIED without prejudice. 32 Petitioner's Motion to Enlarge the Record DENIED without prejudice. 33 Petitioner's Motion for Summary Judgment DENIED. (cc: all counsel, via mail to Ennis Brown at Waupun Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ENNIS LEE BROWN,
Petitioner,
v.

Case No. 16-cv-1497-pp

BRIAN FOSTER,
Respondent.

ORDER DENYING PETITIONER’S MOTION FOR RECUSAL (DKT. NO. 30),
DENYING PETITIONER’S MOTIONS FOR RELEASE PENDING 28 U.S.C.
§2254 RELIEF (DKT. NOS. 40, 43, 45, 57), DENYING MOTION FOR
EVIDENTIARY HEARING (DKT. NO. 31), DENYING MOTION TO ENLARGE
THE RECORD (DKT. NO 32) AND DENYING MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 33)

Among the pending motions in this case are five motions in which the
petitioner argues issues the court already has decided. These motions include a
motion for recusal, dkt. no. 30, and four motions for release pending 28 U.S.C.
§2254 relief, dkt. nos. 40, 43, 45, 57. The court will deny the petitioner’s
renewed motions, and will also deny without prejudice the petitioner’s motions
for an evidentiary hearing, dkt. no. 31, to enlarge the record, dkt. no. 32, and
for summary judgment, dkt. no. 33, because they are premature.
I.

Background
On November 8, 2016, the petitioner filed a petition for a writ of habeas

corpus under 28 U.S.C. §2254. Dkt. No. 1. He alleged that the State of
Wisconsin convicted and sentenced him in violation of the Fourth and Sixth
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Amendments. Id. at 8, 12. At the same time, the petitioner filed a motion for
leave to proceed in the district court without prepaying the filing fee. Dkt. No.
4. After the court denied the motion to proceed without prepaying the fee on
November 28, 2016, the petitioner filed a “motion for substitution[,]” in which
he asked Judge Pepper to recuse herself from presiding over the case. Dkt. No.
7. Because there is no procedure for “substituting” a judge in the federal court
system, the court construed the petitioner’s motion as a motion to recuse
under 28 U.S.C. §455, and denied that motion in its December 6, 2016 order.
Dkt. No. 8.
A month later, on January 9, 2017, the court screened the habeas
petition and ordered the respondent to file an answer within sixty days. Dkt.
No. 9. After the respondent answered on March 9, 2017, dkt. no. 19, the
petitioner filed several motions: 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 court addressed these motions in a May 23, 2017 order—it allowed
the petitioner to file an amended complaint, but noted that while the petitioner
claimed to be adding five new grounds to the amended petition, “the court can
only find 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.” Dkt. No. 25 at 2. The court opined that the other “grounds” in the
amended petition augmented the petitioner’s existing claims, but did not assert
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stand-alone grounds for habeas relief. Id. The court then granted the
petitioner’s motion to amend the petition. Id. at 5.
The court also analyzed the petitioner’s motions for release pending
§2254 relief, and denied them, because the petitioner’s “thin recitation” of his
claims did not give the court confidence that he would be able to meet the high
threshold for 28 U.S.C. §2254 relief. Dkt. No. 25 at 10.
Two weeks later, on June 5, 2017, the petitioner filed a motion for
recusal. Dkt. No. 30. On June 27, July 17, July 26, and September 26 of 2017,
the petitioner filed four motions for release pending §2254 relief. Dkt Nos. 40,
43, 45, 57. The petitioner also has filed a motion for an evidentiary hearing,
dkt. no. 31, a motion to enlarge the record, dkt. no. 32, and a motion for
summary judgment, dkt. no. 33.
II.

Analysis
A.

Motions for Reconsideration of Earlier Orders

The court already has ruled on the issues that the petitioner raises in his
motions for recusal and for release pending §2254 relief. See Dkt. Nos. 8, 25.
Thus, the court considers his renewed motions on these subjects to be
requests for the court to reconsider its previous decisions.
1.

Standard Governing Motions for Reconsideration

“Although motions to reconsider are not specifically authorized by the
Federal Rules of Civil Procedure, courts in the Seventh Circuit apply Rule 59(e)
or Rule 60(b) standards to these motions.” Washington Frontier League
Baseball, LLC v. Zimmerman, No. 14-cv-1862-TWP-DML, 2016 WL 4798988, at
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*1 (S.D. Ind. Sept. 14, 2016). Rule 59(e) allows a court to alter or amend a
judgment if the party files the motion “no later than 28 days after the entry of
the judgment.” Rule 60(b) allows a court to relieve a party of its obligations
under a judgment, order or proceeding for five enumerated reasons as well as
for “any other reason that justifies relief;” under Rule 60(c), a party may file a
Rule 60(b) motion within a reasonable time, as long as it is no more than a year
after entry of the judgment or order.
The petitioner filed his most recent motion to recuse five months and
twenty days after the court denied the first motion—too late for the court to
consider it under Rule 59(e). He filed the first of his three motions for release
thirty-five days after the court denied the original motion—again, too late for
the court to consider it under Rule 59(e). Accordingly, the court will review the
petitioner’s motions under Rule 60(b).
“The district court may grant Rule 60(b) relief only ‘under the particular
circumstances listed in the text of that rule.’” 3SM Realty & Development, Inc.
v. F.D.I.C., 393 F.App’x 381, 384 (7th Cir. 2010) (quoting Russell v. Delco
Remy Div. of General Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995)). Rule
60(b) provides that
On motion and just terms, the court may relieve a party or
its legal representative from a final judgment, order, or proceeding
for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);
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(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). “Rule 60(b) motions are not meant to correct legal errors
made by the district court[,]” and are “‘an extraordinary remedy’” that are
“‘granted only in exceptional circumstances[.]’” 3SM Realty & Development, 393
F.App’x at 384 (quoting McCormick v. City of Chicago, 230 F.3d 319, 327 (7th
Cir. 2000)).
2.

Motion for Recusal (Dkt. No. 30)
a.

Petitioner’s arguments

The petitioner asks “that District Judge Pamela Pepper recuse [sic] from
all casing [sic] in which Ennis Brown is the Plaintiff, Petitioner, or Appellant or
a decision rendered by her.” Dkt. No. 30 at 1. He asserts that Judge Pepper is
biased against him, id., and that her May 23, 2017 order “placed constraints
mainly on the petitioner, denying him the opportunity to address the [various
arguments for habeas relief],” id. at 3. He asserts that he has another case in
front of Judge Pepper, Brown v. Garth-Dickens, 16-cv-241, and argues that
because Judge Pepper granted the respondent’s motion to stay that case, he

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has not been able to proceed to discovery.1 Id. at 3. He argues that Judge
Pepper “has continually misconstrued or constructively deprived the petitioner
of meaningful access to the courts of the Eastern District of Wisconsin in
making decision [sic] contrary to established laws and gerrymandering the
facts in favor of the defendants.” Id. The petitioner further contends that Judge
Pepper abused her discretion by not appointing counsel for him and that her
unfavorable decisions in other cases show that she harbors bias against the
petitioner. Id. at 4.
Finally, the petitioner asserts that the court’s May 23, 2017 order
restricted his claims, and that by “refusing to allow other cases to proceed[,]”
by declining to appoint counsel, and by denying his motions for release
pending 28 U.S.C. §2254 relief, Judge Pepper has demonstrated bias and must
recuse herself. Id. at 5.
b.

Court’s Analysis

On December 6, 2016, the court issued an order denying the petitioner’s
motion to substitute counsel, which it construed as a motion for recusal under
28 U.S.C. §455. Dkt. No. 8. In that order, Judge Pepper surveyed the
petitioner’s arguments, and found that they did not warrant a recusal. Id. at 3.
The December 6, 2016 order noted that “[t]he fact that a judge rules
against a party on a legal issue [was] not one of [the §455 factors that require a
In Brown v. Garth-Dickens, 16-cv-241, the defendants filed a motion to
dismiss the case because they allege that the petitioner failed to exhaust his
remedies before filing in federal court. The court stayed general discovery until
it could resolve that issue. The issue has been fully briefed; congestion on the
court’s docket has prevented the court from ruling.
1

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judge to recuse herself.]” Dkt. No. 8 at 3. The court also explained to the
petitioner the reason that Judge Pepper had been assigned to all of the
petitioner’s cases, and held that “[t]he fact that all five of the plaintiff’s current
cases are before the same judge is not a reason for Judge Pepper to recuse
herself.” Id. The court observed that “[i]n almost any case, a judge will have to
rule for one party and against another. That’s just what judges do. Thus,
neither the statute nor the case law authorizes a judge to recuse herself solely
because she ruled against the moving party.” Id. at 3-4.
The petitioner has not shown that the court’s December 6, 2016 order
was the result of mistake, inadvertence, surprise or excusable neglect. He has
not presented any newly-discovered evidence; the only circumstance that has
changed since Judge Pepper initially declined to recuse herself is that Judge
Pepper issued an order denying the petitioner’s motion to appoint counsel and
the petitioner’s motions for release pending §2254 relief. The petitioner has not
shown fraud, misrepresentations or misconduct by other parties, nor has he
demonstrated that the court’s earlier order declining to recuse is void or has
been released or discharged. The only possible Rule 60(b) factor under which
the court might reconsider its earlier denial of recusal is the “any other reason
that justifies relief” catch-all provision, and no such reason exists here.
As the court pointed out in the December 6, 2016 order, “judicial rulings
alone almost never constitute a valid basis for a bias or partiality motion . . .
Almost invariably, they are proper grounds for appeal, not for recusal.” Liteky
v. United States, 510 U.S. 540, 555 (1994). The fact that the court has ruled
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against the petitioner—in this case or in others—is not, standing alone, a basis
for the court to reconsider its earlier decision under Rule 60(b).
To the extent that the petitioner argues that 28 U.S.C. §144 provides a
basis for the court to reconsider its earlier order, the petitioner has neither
followed the directions of that statute nor made the necessary showing. 28
U.S.C. §144 provides:
Whenever a party to any proceeding in a district court makes
and files a timely and sufficient affidavit that the judge before
whom the matter is pending has a personal bias or prejudice either
against him or in favor of any adverse party, such judge shall
proceed no further therein, but another judge shall be assigned to
hear such proceeding.
The affidavit shall state the facts and the reasons for the
belief that bias or prejudice exists, and shall be filed not less than
ten days before the beginning of the term at which the proceeding
is to be heard, or good cause shall be shown for failure to file it
within such time. A party may file only one such affidavit in any
case. It shall be accompanied by a certificate of counsel of record
stating that it is made in good faith.
28 U.S.C. §144.
“Under §144, recusal is mandatory if the moving papers are sufficient.
That makes the statute a powerful tool that could easily be abused, so its
requirements are enforced strictly.” United States v. Betts-Gatson, 860 F.3d
525, 537 (7th Cir. 2017) (internal citations omitted).
The affidavit the court received from the petitioner on June 9, 2017 does
not state any reason to believe that bias or prejudice exists, other than
describing the times Judge Pepper has ruled against the petitioner, and
describing the problems he alleges with his state court proceedings. The court
has stated several times that under the law, the mere fact that a court rules
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against a party does not prove bias. Nor does the fact that the court has not yet
ruled on motions pending in the petitioner’s other cases. The court
acknowledges that it has taken some time for the court to get to some of the
petitioner’s motions; that is the court’s fault. It is not bias, however—the court
owes decisions to many parties, and is not as current in many cases as it
wishes to be. Nor did the petitioner meet the §144 requirement that he certify
that he was making the affidavit in good faith.
While the court understands that the petitioner disagrees with rulings
and decisions that this court has made in this and other cases, “it is
appropriate for judges to have opinions, even strong opinions, about the merits
of arguments presented to them. That is their job. Such opinions do not show
personal bias unless they ‘display clear inability to render fair judgment.’”
Betts-Gatson, 860 F.3d at 538 (quoting Liteky, 510 U.S. at 551). The
petitioner’s allegations that Judge Pepper unfairly constricted the grounds of
the petitioner’s amended habeas petition fall far short of that high standard.
The petitioner has not provided the court with any reason to reconsider its
order declining to recuse itself, and the court will not do so.
3.

Motions for Release Pending §2254 relief (Dkt. Nos. 40, 43,
45 and 57)
a.

Petitioner’s Arguments

In the petitioner’s first motion to reconsider the court’s denial of release
pending ruling on the habeas petition, he recounts the merits of his claim for
habeas relief under 28 U.S.C. §2254. Dkt. No. 40 at 1-3. He explains that he
has been in custody illegally for some five years, and that during that time he
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hasn’t committed any new crimes or violated any orders. Id. at 3. He explains
how it hurts to be away from his family, and how he does not wish anyone any
harm. He explains how hard this has been on his elderly mother. He says that
he has no plans of running and nowhere to go if he did. Id.
The petitioner’s second motion to reconsider stresses that the state court
did not have subject matter jurisdiction over him, and argues that he is in state
custody on a “null and void” state conviction. Dkt. No. 43 at 1. He says that at
his August 9, 2013 preliminary hearing, the government dismissed Counts One
through Nine of the state criminal complaint because the victim/witness,
Anissa Brown, did not appear for the preliminary hearing. Id. at 2. At this
point, the petitioner contends, the state court lost its subject matter
jurisdiction over him. Id. He argues that the court’s lack of jurisdiction
rendered its decision on his speedy trial rights “outrageous” and that “law and
justice” require that he be released pending this court’s habeas ruling. Id. at 34.
The petitioner’s third motion to reconsider contains the same arguments
as the second one. Dkt. No. 45. The fourth motion to reconsider repeats the
petitioner’s previous arguments about the state court’s lack of subject matter
jurisdiction, and concludes that “[t]he complete denial of due process in this
case clearly shows and is well-documented in the record and evidence
presented, the imprisonment for 14 months stripped Brown of Due Process.”
Dkt. No. 57 at 2. The petitioner mentions the court’s May 23, 2017 order
denying his earlier request for release, id. at 4, but does not identify any errors
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in that ruling. Rather, he repeats language from that decision to assert that he
has met the criteria for bail under 18 U.S.C. §3141 and that he should be
released during the pendency of his 28 U.S.C. §2254 petition. Id.
b.

Court’s Analysis

The court’s May 23, 2017 order noted that while courts had the power to
admit applicants to bail pending decision in a habeas case, the law required
them to exercise that power very sparingly. Dkt. No. 25 at 9 (citing Cherek v.
United States, 767 F.2d 335, 337 (7th Cir. 1985)). In discussing Cherek, Judge
Pepper observed that “courts should consider the requirements of the federal
statute that governs bail pending appear for a federal conviction (18 U.S.C.
§3143(b)) as a preliminary barrier to addressing the merits of a motion for
release.” Id. Judge Pepper did consider those requirements, and concluded that
(a) the petitioner had not provided evidence that he was not likely to flee or to
pose a danger to the community; and that (b) his “thin recitation” of his claims
did not give the court confidence that he would be able to meet the high
threshold necessary to obtain habeas relief. Id.
Again, the petitioner has not demonstrated that the May 23, 2017 order
denying release pending decision on the habeas petition was the result of
mistake, inadvertence, surprise or excusable neglect. He has tried to address
the court’s contention that he did not present any evidence regarding whether
he represented a risk of flight or a danger to the community. He asserts that he
doesn’t plan to harm anyone, doesn’t plan to go anywhere, and wouldn’t have
anywhere to go even if he did have such plans. The court appreciates the
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petitioner’s representations, but they are not evidence. At the bail stage of a
case, defendants present things such as evidence that they have a job waiting
for them (maybe a letter from a future employer), or evidence that they have a
family member willing to take them in upon release, to support claims that
they do not pose a risk of flight. With regard to risk of danger to the
community, defendants argue that they have no prior criminal history, or that
their prior criminal history did not involve violence. The petitioner has not
presented any such evidence to support the motion to reconsider.
Again, the petitioner has not shown fraud, misrepresentations or
misconduct by other parties, nor has he demonstrated that the court’s earlier
order declining to release him pending its decision is void or has been released
or discharged. The only possible Rule 60(b) factor under which the court might
reconsider its earlier denial of recusal is the “any other reason that justifies
relief” catch-all provision, and no such reason exists here.
The court understands that the petitioner strongly believes that he is
entitled to habeas relief. Most all petitioners who file §2254 motions feel just as
strongly. But even the few petitioners who prevail on habeas relief have
difficulty convincing federal courts to release them while the state decides
whether to retry them. At this stage, the court has no basis for concluding that
it should change its decision regarding release pending its habeas decision.
B.

Motion for an Evidentiary Hearing (Dkt. No. 31)

The respondent filed his response to the habeas petition on March 9,
2017. Dkt. No. 19. He filed his brief in opposition on May 19, 2017. Dkt. No.
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24. The petitioner filed a reply on April 6, 2017, dkt. no. 23, another reply on
June 1, 2017, dkt. no. 27, and another on June 9, 2017, dkt. no. 35. He also
has filed a supplemental brief, dkt. no. 41, and a supplement, dkt. no. 47. The
habeas petition is more than fully briefed. The court has not ruled on the
petition, and this has caused the petitioner frustration. He has expressed that
frustration in numerous filings, including a request for the status of the
petition (which the court received on January 24, 2018). Dkt. No. 58.
The court will review, and rule on, the petition. In the meantime,
however, the petitioner has filed a motion, asking the court to hold an
evidentiary hearing regarding some of the arguments the respondent has made
in his various pleadings. Dkt. No. 31. Rule 8(a) of the Rules Governing Section
2254 Cases in the United States District Courts says that if a court does not
dismiss a habeas petition, it must review all of the materials submitted and
determine whether it believes that there’s a need for an evidentiary hearing.
Further, in cases where a petition did not fully develop the factual basis of his
claim in state court, the federal court “shall not hold an evidentiary hearing on
the claim” unless (a) the claim relies on a new rule of constitutional law that
wasn’t available at the time of the state court proceedings, or on facts that
could not previously have been discovered even through diligent effort, and (b)
the facts supporting the claim would show by clear and convincing evidence
that no reasonable factfinder would have found the petitioner guilty. 28 U.S.C.
§2254(e)(2). This is a heavy burden to meet.

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The court will deny this motion without prejudice as premature. When
the court has the opportunity to thoroughly review all of the pleadings, it will
decide whether an evidentiary hearing is warranted under the rules and the
statute. If the court determines that an evidentiary hearing is needed, it will
schedule one.
C.

Motion to Expand the Record (Dkt. No. 32)

The petitioner has filed a motion, asking the court to enlarge the record
with a number of documents that do not appear to have been part of the statecourt record. Dkt. No. 32. These documents include records regarding how
much time his lawyers spent working on his case, copies of jail records, records
from the Office of Lawyer Regulation regarding the suspension of one of his
lawyers, recordings of state-court hearings, and a “Justice 2000” case file2. Id.
The court will deny this motion without prejudice. The court’s job in
considering a habeas petition is to determine whether, based on the record
before the state court, the state court violated any of the petitioner’s
constitutional rights. It is unusual for a federal court to consider things that
were not available to the state court, either at the trial stage, or on appeal or
post-conviction review. It is true that if a court does not deny a habeas petition,
it has the discretion to direct the parties to submit additional materials. Rule 7,
Rules Governing Section 2254 Cases in the United States District Courts. But
in this case, the court has not decided whether or not to deny the petition. If
Justice 2000 was a community advocate group; in 2009 it merged into
another organization, called Community Advocates.
http://communityadvocates.net/j2k/
2

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the court does not deny the petition, and feels that it needs additional
materials, it will ask for them.
In addition, it does not appear that the petitioner has all of these
documents. He appears to be asking someone to obtain them for him, and then
to add them to the record. Rule 6 of the Rules Governing Section 2254 Cases in
the United States District Courts says that a party must seek leave of court in
order to conduct discovery in a habeas case. The party seeking such leave
must state good cause for the request. The petitioner has not sought such
leave, and the court has not granted it. The court would not grant such a
motion unless and until it had determined that it was not going to deny the
petition.
D.

Motion for Summary Judgment (Dkt. No. 33)

On June 9, 2017, the court received from the petitioner a motion for
summary judgment. Dkt. No. 33. Rule 56 of the Federal Rules of Civil
Procedure allows a party in a civil case to file a motion, asserting that there are
no factual disputes between the parties and that, under the undisputed facts,
the movant is entitled to judgment as a matter of law. Summary judgment is
available in civil lawsuits, to allow a court to grant judgment when there are no
factual disputes to be decided at a trial, and the only decision to be made is a
legal one.
Rule 12 of the Rules Governing Section 2254 Cases in United States
District Courts says that the Federal Rules of Civil Procedure are applicable in
habeas cases “to the extent that they are not inconsistent with any statutory
15

provisions or these rules . . . .” Federal habeas law mandates that “a
determination of a factual issue made by a State court shall be presumed to be
correct.” 28 U.S.C. §2254(e)(1). So in a habeas case—unlike a regular civil
lawsuit—the federal judge starts with the presumption that the state court’s
factual determinations were correct, which means that it doesn’t need to
determine whether there are any genuine disputes as to issues of material fact.
A petitioner may try to rebut that presumption of correctness, but the standard
is difficult. A petitioner may rebut the presumption only by presenting clear
and convincing evidence that the state judge’s factual determination was not
correct.
Here, the summary judgment motion raises the same issues the
petitioner has raised in the many pleadings he has filed in relation to the
habeas petition. The court will deny the summary judgment motion without
prejudice, and will allow the petitioner to renew the motion if, in its review of
the petition briefs, the court concludes that a summary judgment motion is
warranted.
III.

Conclusion
As the court has indicated, the habeas petition is fully briefed. The next

step in this case is for the court to issue its decision. The court knows that the
petitioner is anxious for a decision, and will try to get a decision out soon. But
there is nothing more for the petitioner (or the respondent) to do, or to file, at
this time.

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The court DENIES the petitioner’s motion for recusal, which the court
construes as a motion to reconsider its order of December 6, 2016. Dkt. No. 30.
The court DENIES the petitioner’s motions for release pending 28 U.S.C.
§2254 relief, which the court construes as motions to reconsider its order of
May 23, 2017. Dkt. Nos. 40, 43, 45, 57.
The court DENIES WITHOUT PREJUDICE the petitioner’s motion for an
evidentiary hearing. Dkt. No. 31.
The court DENIES WITHOUT PREJUDICE the petitioner’s motion to
enlarge the record. Dkt. No. 32.
The court DENIES the petitioner’s motion for summary judgment. Dkt.
No. 33.
Dated in Milwaukee, Wisconsin this 27th day of February, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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