Tyson v. United States of America

Filing 11

ORDER signed by Judge J.P. Stadtmueller on 12/15/2017. 9 Respondent's Request for Extension of Time GRANTED. Respondent to file an answer or other appropriate motion by 1/8/2018; Petitioner to file a response by 2/7/2018; if Respondent filed a motion in lieu of an answer, Respondent may file a reply brief by 2/21/2018. 8 Petitioner's Motion for Discovery GRANTED in part and DENIED in part. See Order. (cc: all counsel, via mail to Jason J. Tyson at Allenwood Medium FCI) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JASON J. TYSON,

v.

Petitioner,

UNITED STATES OF AMERICA,

Case No. 17-CV-1274-JPS

ORDER

Respondent.

On September 21, 2017, Jason J. Tyson (“Tyson”), a federal prisoner,
filed this motion to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. Before the Court are two matters. The first is the
government’s request for an extension of time to answer or otherwise
respond to Tyson’s motion, and the second is Tyson’s request for an order
relating to discovery in this case. The Court addresses each motion in
turn.
1.

Motion for Extension of Time
The Court originally ordered the government to respond to Tyson’s

motion by November 1, 2017. (Docket #2). The government requested and
was granted a two-week extension of time. (Docket #4). Before that
deadline arrived, Tyson sought to amend his motion, and the Court
granted that motion in an order dated November 15, 2017. (Docket #7).
Now the government brings a new request for an extension, this time
seeking a little less than a month in additional time to prepare its response
to the amended motion. (Docket #9).
The Court finds good cause to grant the government’s requested
extension. However, two additional notes are warranted. First, both of the

government’s requests for extension of time in this case have been
submitted by letter. The Court generally does not entertain requests for
relief not raised by motion. Letters should not be used in lieu of motions.
Second, no further extensions of the government’s response deadline will
be entertained for any reason.
2.

Motion for Discovery
Tyson recently filed a motion requesting that the Court order his

trial and appellate counsel to submit affidavits relating to his claims of
ineffective assistance. (Docket #8). To the extent the motion seeks
authorization to conduct discovery directed at these two individuals, it is
granted. Rule 6 of the Rules Government Section 2255 Proceedings
provides that a judge may, for good cause, “authorize a party to conduct
discovery under the Federal Rules of Criminal Procedure or Civil
Procedure, or in accordance with the practices and principles of law.” The
Court finds good cause for the proposed discovery exists in this case, as
the testimony of Tyson’s counsel will be indispensable in proving his
claims of ineffective assistance. See Bracy v. Gramley, 520 U.S. 899, 908–09
(1997).
However, to the extent Tyson seeks a Court order directed at his
former lawyers, compelling them to produce affidavits, (Docket #8 at 4),
the motion must be denied. He cites no authority requiring this Court to
intervene in the collection of evidence he may need to sustain his claims.
Rule 6 clearly provides that once authorized, Tyson may serve his trial
and appellate counsel with his own discovery requests under the rules of
procedure. Certainly Tyson’s incarceration limits his financial resources,
id. at 3, but this is his matter to litigate, and the costs of obtaining relevant
evidence will not be borne by others on Tyson’s request. Indeed, even for
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those prisoners granted leave to proceed in forma pauperis, the Court does
not absorb the costs of litigation, including discovery. Porter v. Dep’t of
Treasury, 564 F.3d 176, 180 n.3 (3d Cir. 2009); Lindell v. McCallum, 352 F.3d
1107, 1111 (7th Cir. 2003).
Furthermore, while the Court has the option to appoint counsel for
discovery purposes under Rule 6, it declines to do so here. Habeas
proceedings are civil in nature, and thus Tyson has no automatic right to
counsel. See Johnson v. Chandler, 487 F.3d 1037, 1038 (7th Cir. 2007); Winsett
v. Washington, 130 F.3d 269, 281 (7th Cir. 1997); Resendez v. Knight, 653 F.3d
445, 446 (7th Cir. 2011). Under 18 U.S.C. § 3006A(a)(2)(B), the court may
appoint counsel to represent an indigent habeas petitioner if “the interests
of justice so require.” The court should seek counsel to represent the
petitioner “if, given the difficulty of the case and the litigant’s ability, she
could not obtain justice without an attorney, she could not obtain a lawyer
on her own, and she would have had a reasonable chance of winning with
a lawyer at her side.” Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997).
There is no need for counsel at this early stage in the case. Tyson’s
requests for sworn statements directed at his former counsel should be
simple, straightforward, and well within Tyson’s capacity to obtain
notwithstanding his lack of legal training. This case is unlike Wright v.
Gramley, 125 F.3d 1038, 1043 (7th Cir. 1997), where the Seventh Circuit
lamented a prisoner’s difficulty in obtaining affidavits from unknown
potential witnesses in his state criminal trial. Here, Tyson knows well both
of the individuals from whom he needs evidence, making his present task
far easier. Unless and until his former counsel fail to comply with their
obligations to respond to properly served discovery requests, the Court
will not intercede.
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Accordingly,
IT IS ORDERED the government’s request for an extension of time
(Docket #9) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that, on or before January 8, 2018, the
government shall file an answer to Petitioner’s motion to vacate, set aside,
or correct his sentence (Docket #1), or other appropriate motion;
IT IS FURTHER ORDERED that Petitioner shall file a response to
the government’s submission not later than February 7, 2018;
IT IS FURTHER ORDERED that, if the government files a motion
in lieu of an answer, it may file a reply brief to Petitioner’s response not
later than February 21, 2018; and
IT IS FURTHER ORDERED that Petitioner’s motion for discovery
(Docket #8) be and the same is hereby GRANTED in part and DENIED in
part as stated herein.
Dated at Milwaukee, Wisconsin, this 15th day of December, 2017.
BY THE COURT:

____________________________________
J.P. Stadtmueller
U.S. District Judge

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