Sauve v. State of Wisconsin

Filing 17

ORDER signed by Judge J.P. Stadtmueller on 8/24/2018 DENYING 16 Petitioner's Motion for Reconsideration of Order Denying Motion to Appoint Counsel. (cc: all counsel, via mail to Floyd C. Sauve at Fox Lake Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
FLOYD C. SAUVE,
Petitioner,
v.

Case No. 18-CV-932-JPS

WARDEN RANDALL R. HEPP,

ORDER
Respondent.
Petitioner, who is incarcerated at Fox Lake Correctional Institution,
filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. See (Docket #1). On July 5, 2018, Petitioner filed his first motion
requesting the appointment of counsel, (Docket #12), which the Court
denied, (Docket #13). Petitioner filed a second motion requesting courtappointed counsel on August 13, 2018. (Docket #14). That motion was also
denied, in an order issued August 22, 2018. (Docket #15).
The very next day, on August 23, 2018, the Court received a motion
for reconsideration of the first denial of counsel. (Docket #16). The motion
is dated August 21, 2018, so it clearly was drafted and mailed to the Court
for filing before Petitioner received the Court’s order on his second motion
for counsel. Id. at 1. In any event, whether he seeks reconsideration of the
first or second denial of counsel, the request must be denied. The Court
has already laid out the relevant legal principles for Petitioner twice, so it
will not repeat that discussion here. See (Docket #15 at 1–2).
In its prior orders, the Court carefully explained that Petitioner’s
requests for counsel were without merit because he: (1) failed to show he

was indigent; (2) failed to provide evidence that he had made reasonable,
unsuccessful attempts to secure counsel on his own; and (3) failed to show
that this matter exceeded his ability to litigate. Id. at 2. In his latest
submission, he has solved only the first problem; he has provided
satisfactory evidence that he is, in fact, indigent. See (Docket #16-1, #16-2).
But he still has not provided evidence that he made reasonable
attempts to obtain his own attorney. The Court clearly instructed him that
to satisfy this requirement, Petitioner must “submi[t] copies of several
rejection letters he has received from counsel he solicits for representation
with respect to this matter.” (Docket #15 at 3). Petitioner did not do this.
Instead, he simply repeated the assertion, made in his prior two requests
for counsel, that the attorneys he has corresponded with have asked for
exorbitant retainers. (Docket #16 at 2). This may be true, but given the
dearth of competent, willing counsel for matters brought by pro se
prisoners, the Court must insist that copies of the letters be provided. The
Court will not take Petitioner at his unsworn, uncorroborated assertion
that reasonable efforts have been made.
Additionally, Petitioner continues to provide unpersuasive reasons
that counsel should be appointed for him. Indeed, he simply repeats the
reasons he earlier gave, including his opinion of the strength of his case
and the fact that he largely copied his petition from his state postconviction lawyer’s briefs. Id. at 1–2. The Court addressed these
circumstances in its last order and found that they do not warrant the
appointment of counsel at this time. (Docket #15 at 3–4). A motion for
reconsideration is not an opportunity to repeat failed arguments. Wickens

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v. Shell Oil Co., 620 F.3d 747, 759 (7th Cir. 2010); Buchanan v. Ill. Dep’t of
Human Servs., 15 F. App’x 366, 369 (7th Cir. 2001).
Moreover, assuming Petitioner copied his habeas petition, it
remains true that his motions for appointment of counsel—which he
undoubtedly drafted himself—show a competent grasp of the relevant
facts and law. Of course, the motions are without legal merit, but this
alone does not mean that Petitioner needs counsel. He suggests that
because he failed to submit evidence of his indigency in prior motions, he
clearly lacks the ability to litigate. (Docket #16 at 2). The Court disagrees.
First, he solved the problem after receiving the Court’s instruction, and
second, such a minor error is not indicative of the kind of litigation
incompetence that warrants the appointment of a lawyer. Again, the
question is whether Petitioner can adequately present evidence, make
arguments, and attend to litigation tasks on his own, not whether a lawyer
would do a better job. See Pruitt v. Mote, 503 F.3d 647, 654–55 (7th Cir.
2007). Nothing in the record indicates that Petitioner is unable to perform
these functions. His motion for reconsideration must, therefore, be denied.
Further, the Court cautions Petitioner that if he files similar motions in the
future that merely repeat prior arguments, they will be summarily denied.
Accordingly,
IT IS ORDERED that Petitioner’s motion for reconsideration of the
Court’s order denying his motion for appointment of counsel (Docket #16)
be and the same is hereby DENIED.

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Dated at Milwaukee, Wisconsin, this 24th day of August, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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