Bearheart, Bradley v. Dittman, Michael

Filing 22

ORDER granting in part and denying in part 19 motion to supplement the record and stay the briefing. Within sixty days of the date of this order, Bearheart shall supplement the record with any additional state court records. By that same date, Bea rheart must submit any additional brief in support of the petition or the court will infer that he intends to rest on his initial brief. No further extensions will be granted unless accompanied by a showing of good cause. Once Bearheart files his res ponse to this order, or his time to do so expires, respondent will have thirty days in which to file a brief in opposition to the petition. Once the respondent files his brief in opposition, Bearheart will have twenty days to file a reply if he wishes to do so. Signed by District Judge William M. Conley on 1/14/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
BRADLEY L. BEARHEART,
Petitioner,

ORDER

v.

l 4-cv-603-wrnc
MICHAEL DITTMAN, Warden,
Columbia Correctional Institution,
Respondent.
Petitioner Bradley L. Bearheart seeks a writ of habeas corpus under 28 U.S.C.
§ 2254 to challenge his state court conviction for attempted intentional homicide in

Barron County Case No. 2011CF6.

In his petition and supporting brief, Bearheart

contends that he is entitled to relief from this conviction for the following reasons: ( 1) the
evidence was insufficient to support his conviction; (2) he was denied effective assistance
of counsel at his trial; and (3) he was denied effective assistance of counsel on
post-conviction review.

The respondent has filed an answer along with relevant state

court records from Bearheart's trial and direct appeal.

Under the current scheduling

order, Bearheart had until December 8, 2014, to file any additional brief in support of his
petition or to advise the court in writing that he intended to rest on his initial brief. To
date, Bearheart has not complied as directed. Instead, he has filed a motion to stay the
briefing schedule and to direct the respondent to further supplement the record.
In his motion to supplement, Bearheart seeks an assortment of state court records,
many of which the respondent has already provided.

(Dkts. # 6 through # 18.) The

respondent does not oppose Bearheart's motion, in part, and has agreed to provide one

additional transcript of a motion hearing held on June 17, 2011.

(Dkt. # 20, Exh. 1).

The respondent argues that the remaining records, which consist of materials in
possession of the Barron County Clerk's Office, are irrelevant and unnecessary to a
determination on the pending federal habeas corpus petition.

In particular, the

respondent notes that Bearheart's direct appeal was decided through the no-merit process
of review.

During that process, the Wisconsin Court of Appeals reviewed a no-merit

report prepared by Bearheart's appellate counsel along with a response from Bearheart.
After conducting an independent review of the record, the court of appeals agreed with
Bearheart's counsel that there was no basis for appeal and summarily affirmed the
conviction. See State v. Bearheart, 2012AP2807 (Sept. 17, 2013).

Thereafter, the

Wisconsin Supreme Court summarily denied Bearheart's petition for review. See State v.
Bearheart, 2012AP2807 (Jan. 13, 2014).

Because the state did not participate in

Bearheart's no-merit appeal, it does not have copies of the records that Bearheart seeks.
In Griffin v. Illinois, 351 U.S. 12, 19 20 (1956), the Supreme Court held that the
Due Process and Equal Protection clauses of the Fourteenth Amendment require that
states provide indigent defendants with a trial transcript free of charge when it is
necessary for meaningful review on direct appeal. There is no such obligation, however,
to supply a free copy of his transcript or other court records for use in a collateral
proceeding. See United States

JJ.

MacCollom, 426 U.S. 317 ( 1976) (construing the federal

court reporter statute, 28 U.S.C. § 753, whiCh authorizes a free transcript for indigent
defendants only if one is needed to decide the issue presented and the district court
certifies that his appeal is non-frivolous); see also Ruark JJ. Gunter, 958 F.2d 318, 319 (10th
2

Cir. 1992) (noting that an indigent § 2254 petitioner does not have a constitutional right
to access a free transcript in order to search for error); Jackson v. Estelle, 672 F.2d 505, 506
(5th Cir. 1982) ("[N]or is the state required to furnish complete transcripts so that the
defendants ... may conduct 'fishing expeditions' to seek out possible errors at trial.").
Bearheart does not provide specific facts showing how the records that he seeks are
necessary for a determination of the claims presented in his pending habeas corpus
petition. Conclusory allegations are insufficient to justify the awarding of a free copy of
court records at public expense. See MacCollom, 426 U.S. at 327. Therefore, the court
will not order the state to undertake the expense of obtaining and providing additional
records on Bearheart's behalf.
The court notes that the records Bearheart seeks were available to him previously
during his no-merit appeal. Bearheart may obtain copies and submit them on his own if
he wishes to do so. Accordingly, the court will grant his motion to supplement the record
in part and will grant him an extension of time, up to and including sixty days from the
date of this order, in which to file them with this court. By that same date, Bearheart
must submit any additional brief in support of the petition or the court will infer that he
intends to rest on his initial brief.

No further extensions will be granted unless

accompanied by a showing of good cause.
ORDER
IT IS ORDERED that:
1. Petitioner Bradley L. Bearheart' s motion to supplement the record and stay

briefing (dkt. # 19) is GRANTED, in part, and DENIED, in part.
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2. Within sixty days of the date of this order, Bearheart shall supplement the
record with any additional state court records.

By that same date,

Bearheart must submit any additional brief in support of the petition or the
court will infer that he intends to rest on his initial brief.

No further

extensions will be granted unless accompanied by a showing of good
cause.
3. Once Bearheart files his response to this order, or his time to do so expires,
respondent will have thirty days in which to file a brief in opposition to the
petition. Once the respondent files his brief in opposition, Bearheart will
have twenty days to file a reply if he wishes to do so.
Entered this 14th day ofJanuary, 2015.

BY THE COURT:

Isl
WILLIAM M. CONLEY
District Judge

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