Edwards, Albert v. Williams II, Louis

Filing 9

ORDER denying petitioner's 6 motion for appointment of counsel, granting in part and denying in part respondent's 7 motion for clarification and an extension of time. Respondent's answer to the petition is due on August 2 1, 2017. Petitioner's brief in support of the petition is due on September 11, 2017. Respondent's brief in opposition is due on September 25, 2017. Petitioner's reply brief is due on October 2, 2017. Signed by District Judge James D. Peterson on 7/11/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ALBERT EDWARDS,
Petitioner,
v.

ORDER
17-cv-114-jdp

LOUIS WILLIAMS II,
Respondent.

Pro se petitioner Albert Edwards, a prisoner incarcerated at the Federal Correctional
Institution in Oxford, Wisconsin, seeks a writ of habeas corpus under 28 U.S.C. § 2241.
Edwards challenges his sentence from the United States District Court for the Northern
District of Illinois, arguing that the Supreme Court’s decision in United States v. Mathis, 136 S.
Ct. 2243 (2016), invalidates his sentence, which was enhanced by his career-offender status
under the federal sentencing guidelines. I screened Edwards’s petition and allowed him to
proceed. Dkt. 3.
Two motions are pending before the court: (1) Edwards’s motion for appointment of
counsel, Dkt. 6; and (2) respondent’s motion for clarification and an extension of time, Dkt. 7.
I will deny Edwards’s motion and grant respondent’s motion in part.
A. Motion for appointment of counsel
A habeas petition challenging a sentence is “not part of the original criminal proceeding;
it is an independent civil suit.” Rauter v. United States, 871 F.2d 693, 695 (7th Cir. 1989). So
given the civil nature of the proceeding, a habeas petitioner does not have a constitutional right
to counsel. Id. But the court may appoint counsel for a petitioner seeking habeas relief under

28 U.S.C. § 2241 if the appointment of counsel would serve “the interests of justice” and the
petitioner is “financially eligible.” 18 U.S.C. § 3006A(a)(2).
When evaluating a motion for appointment of counsel in habeas cases, the Seventh
Circuit has applied a similar standard to the one that applies under 28 U.S.C. § 1915(d). See
Winsett v. Washington, 130 F.3d 269, 281 (7th Cir. 1997). The district court may consider,
among other things, five non-exclusive factors: (1) the complexity of the case; (2) the
petitioner’s ability; (3) whether the petitioner “could obtain justice without an attorney”;
(4) whether the petitioner “could not obtain a lawyer on [his] own”; and (5) whether the
petitioner would have “a reasonable chance of winning with a lawyer at [his] side.” Id. (quoting
Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir.1997)); see also Howard v. Gramley, 225 F.3d 784,
794 (7th Cir. 2000) (quoting Winsett, 130 F.3d at 281). “Appointing counsel for pro se
petitioners in habeas corpus cases is a power commended to the discretion of the district court
in all but the most extraordinary circumstances.” Winsett, 130 F.3d at 281.
Here, as Edwards acknowledges, the central problems with his petition are that he based
his petition with limited understanding of his prior criminal proceedings and that he lacks
means to retrieve the relevant record from those proceedings. Dkt. 6, at 1-2. But these problems
will be resolved once respondent files his answer with the relevant record attached, as I will
direct respondent to do in this order. And, without the record, it is far from clear whether
Edwards has a reasonable chance of success even with an attorney. Once the parties brief the
merits of Edwards’s petition with the benefit of the full record, Edwards may renew his motion.
I will then evaluate whether appointing counsel would be appropriate. Accordingly, I will deny
Edwards’s motion without prejudice.

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B. Motion for clarification and an extension of time
In my screening order, I directed respondent to file an answer and set a briefing
schedule. Dkt. 3, at 8-9. Respondent moves for clarification on whether he must file an answer
in a Section 2241 case. Dkt. 7, ¶ 4. He also seeks a 30-day extension to file a combined
procedural and substantive response to the petition in lieu of an answer. Id. ¶ 5.1 I will grant
respondent’s motion in part. I will require respondent to file an answer, grant an extension of
time, and set a new briefing schedule.
A district court may apply the Rules Governing Section 2254 Cases to Section 2241
cases. See Rule 1(b), Rules Governing Section 2254 Cases. Under Rule 5 for Section 2254
cases, a respondent is not required to file an answer “unless a judge so orders.” Thus, although
service of the petition by itself does not obligate a respondent to file an answer, a district judge
can nonetheless require a respondent to do so. I have required respondents in Section 2241
cases to file answers in the past. See, e.g., Ruiz v. Williams, No. 15-cv-372, Dkt. 5 (W.D. Wis.
July 8, 2016); Gray v. Kroger, No. 16-cv-203, Dkt. 3 (W.D. Wis. June 2, 2016). And other
district courts within this circuit have done the same. See, e.g., Robinson v. Cross, No. 16-cv-20,
2016 WL 397898 (S.D. Ill. Feb. 2, 2016); Gillum v. Rios, No. 11-cv-1056, 2011 WL 693598
(C.D. Ill. Feb. 18, 2011); Kramer v. Jenkins, 108 F.R.D. 429 (N.D. Ill. 1985). So the practice of
requiring respondents to file answers in Section 2241 cases is neither new nor unusual.

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Although respondent submits the second request as an “alternative,” the two requests are
practically the same: the motion requests (1) that I take notice of how my practice for handling
Section 2241 cases differs from the practice of another judge in this district who requires a
respondent in a Section 2241 case to file just one response, thereby suggesting that I do the
same, or (2) that respondent be allowed to file just one response to Edwards’s petition, without
an answer. So the main idea of respondent’s motion is that he should not be required to file
an answer.

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An answer is valuable for the court and the parties in a habeas proceeding. As the
Advisory Committee explains,
[An answer] permits the court and the parties to uncover quickly
the disputed issues; it may reveal to the petitioner’s attorney
grounds for release that the petitioner did not know; and it may
demonstrate that the petitioner’s claim is wholly without merit.
Advisory Comm. Notes to Rule 5; see also Williams v. Calderon, 52 F.3d 1465, 1483 (9th Cir.
1995) (“The purpose of the answer is to frame the issues in dispute, as well as to ferret out
unmeritorious petitions.”). Edwards’s case is a good example. Edwards presented only limited
portions of the record, and the success of his petition will depend, at least in part, on the
sentencing court’s reasoning. Dkt. 3, at 7-8. Respondent’s answer and the relevant transcripts
attached to it will show the sentencing court’s reasoning, and after reviewing the record,
Edwards can amend, withdraw, or file a new brief in support of his petition.
True, this process allows Edwards two cracks at briefing the merits. Indeed, many
habeas petitioners file their opening briefs at the same time they file their petitions, and that
is what Edwards did here. But the Rules do not require a habeas petitioner to file a brief at the
commencement of a habeas proceeding. See Rules 2 and 3, Rules Governing Section 2254
Cases. And the Advisory Committee Note above envisions allowing a habeas petitioner to have
a second chance on the merits after reviewing the answer: it contemplates allowing the
petitioner to raise additional grounds that he did not originally raise at the commencement of
the habeas proceeding. This rationale is particularly relevant here. I do not expect Edwards, a
prisoner, to have kept the transcripts related to his 1994 sentencing, which was 23 years ago,
and he indicates that he cannot identify the Arkansas statute that was used to enhance his
sentence. See Dkt. 2, at 9. Allowing Edwards an opportunity to litigate his habeas petition on
the merits with the benefit of the full record is appropriate.

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Respondent points out that another judge in this district has implemented a procedure
for Section 2241 cases that does not require a respondent to file an answer. Dkt. 7, ¶ 6. Each
district judge is entitled to set his or her own procedure for handling habeas petitions, but I
appreciate the value of the procedure requiring only one response to a petition. If the record is
fully developed, and the issues are clearly laid out by the petition, asking the respondent to file
an opposition brief right away promotes efficiency. And there is some inherent value in
applying the same procedure across the district. I will thus consider harmonizing my procedure
with those of other judges in this district. But conferring with other chambers will take time,
and my immediate task is to decide how this case should proceed.
So here is the approach that I will take. I am mindful that respondent must gather a
large volume of documents to prepare an answer to Edwards’s petition and that this process
can be burdensome. But I will afford Edwards an opportunity to brief the merits with the
benefit of the full record and the answer. I will extend the deadline for the answer and set a
new briefing schedule. Respondent may raise both procedural and substantive arguments in his
opposition brief. Respondent may seek additional extensions of time if reasonably necessary.
One last thing. I take respondent to mean that he faces difficulties retrieving all
potentially relevant documents and that he can prevail without gathering the missing
documents. Respondent need not submit documents that are irretrievable or too burdensome
to obtain, as long as respondent indicates in the answer why those documents have not been
submitted. The same applies for transcripts, pursuant to Rule 5(c) of the Rules Governing
Section 2254 Cases.

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ORDER
IT IS ORDERED that:
1. Petitioner’s motion for appointment of counsel, Dkt. 6, is DENIED without
prejudice.
2. Respondent’s motion for clarification and an extension of time, Dkt. 7, is
GRANTED in part and DENIED in part as discussed above.
3. Respondent’s answer to the petition is due on August 21, 2017.
4. Petitioner’s brief in support of the petition is due on September 11, 2017.
5. Respondent’s brief in opposition is due on September 25, 2017.
6. Petitioner’s reply brief is due on October 2, 2017.
Entered July 11, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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