United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION (DKT. NO. 10), DENYING PLAINTIFF'S MOTION
FOR RECUSAL (DKT. NO. 11), AND DENYING PLAINTIFF'S
MOTIONS TO USE RELEASE ACCOUNT FOR LEGAL COSTS AND SUPPLIES
(DKT. NO. 15, 20)
PAMELA PEPPER United States District Judge
plaintiff, Ennis Lee Brown, is a Wisconsin state prisoner
representing himself. He filed this lawsuit alleging that the
defendants violated his constitutional rights. Dkt. No. 1. On
July 18, 2016, the court screened the complaint under 28
U.S.C. §1915A, and dismissed the case. Dkt. No. 8. The
court entered judgment on July 19, 2016. Dkt. No. 9. The
plaintiff has filed a motion for reconsideration (Dkt. No
10), a motion for recusal (Dkt. No. 11), two motions to use
inmate release account to cover fees and supplies (Dkt. No.
15, 20), a notice of appeal (Dkt. No. 13), and a motion for
leave to proceed without prepayment of the appeal fee (Dkt.
No. 19). The court addresses these motions in this order.
Motion for Reconsideration of Screening Order
plaintiff filed his motion for reconsideration on July 25,
2016. Dkt. No. 10. He contends that the court erred in
concluding that Heck v. Humphrey, 512 U.S. 477
(1994), bars this complaint. Dkt. No. 10 at 7. According to
the plaintiff, his complaint does not challenge his
underlying conviction or sentence, but rather challenges the
procedural issue of whether the state court forced him to
have an appellate attorney despite the fact that he did not
request an attorney or consent to having an attorney.
Id. at 2. He asserts that the issue is “his
right to hire, retain, seek, request counsel, or to be pro
se, in which case, has nothing to do with the effectiveness
of un-hired counsel.” Id. at 3-4. The
plaintiff states that it would have been “totally
illogical for Mr. Brown to fire someone he did not hire and
waive his right of procedural due process as the court stated
on the record.” Id. at 4. He cites to
Wilkinson v. Dotson, 544 U.S. 74 (2005) and
Powers v. Hamilton Cnty. Pub. Defender's Comm.,
501 F.3d 592 (6th Cir. 2007), and states that, like the
inmate in the Powers case, he (the plaintiff) is
challenging only a procedure - not his underlying conviction
or the duration of his sentence - and therefore that the
court erred in determining that Heck barred his
claim. Dkt. No. 10 at 5. The plaintiff also cites to
Skinner v. Switzer, 562 U.S. 521, 525 (2011), where
the Supreme Court held that a post-conviction claim for DNA
testing was properly pursued in a §1983 action. Dkt. No.
10 at 6, 7.
59(e) allows a court to alter or amend a judgment only if the
petitioner can demonstrate a manifest error of law or present
newly discovered evidence.” Obriecht v.
Raemisch, 517 F.3d 489, 494 (7th Cir. 2008) (citing
Sigsworth v. City of Aurora, 487 F.3d 506, 511-12
(7th Cir. 2007)). A “manifest error” is a
“wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v. Metro.
Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)
(citation omitted). Whether to grant a motion to amend
judgment “is entrusted to the sound judgment of the
district court.” In re Prince, 85 F.3d 314,
324 (7th Cir. 1996).
screened the complaint, the court dismissed this case on
grounds that the complaint was Heck-barred and
failed to state a claim. Dkt. No. 8 at 8. The court also
noted that the plaintiff had raised these issues, in part, in
another case he filed in this court. Id. (The other
case is Brown v. Hicks, Case No. 15-cv-509-PP (E.D.
Wis.), which currently is on appeal. Seventh Circuit Case No.
16-1622.) After reviewing the allegations in the complaint,
the court dismissed the case, reasoning as follows:
As far as the court can tell, the plaintiff contends the
State Public Defender's Office did not ask him if he
wanted to appeal his conviction, did not ask him if he wanted
a lawyer to represent him in that appeal, appointed contract
attorney Rosen to represent him without his consent, deprived
him of “vital records” (which he does not
identify), and prevented him from getting help through a
nonprofit organization. He also contends that he notified
multiple people of these alleged violations, and they did not
correct the alleged violations. He argues that the
appointment of Attorney Rosen as his appellate counsel
constituted a procedural violation. The plaintiff does not
assert, however, that the appointment of Attorney Rosen had
an effect on the outcome of his appeal.
In the plaintiff's previous case (Case No. 15-cv-509,
E.D. Wis.), the plaintiff challenged the Wisconsin State
Public Defender's Office appointment of Attorney Mark
Rosen to represent him in his criminal appeal, contending
that the appointment violated his right to choose his own
lawyer, or to proceed pro se. In Case No. 15-cv-509, the
court determined that this claim was barred by Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994) (suit under
§1983 barred where judgment in plaintiff's favor
would necessarily imply the invalidity of criminal
conviction, unless conviction has been invalidated):
First, the court did not misapply Heck: an alleged
Sixth Amendment violation at the appellate level is a
challenge to the original conviction-the very thing that Heck
says a plaintiff may not challenge in a §1983 case.
Second, the plaintiff is incorrect the Public Defender
violated his Sixth Amendment rights by selecting his attorney
for him; the Sixth Amendment does not include an unqualified
right to select one's own attorney. See Wheat v.
United States, 486 U.S. 143, 158-59 (1988). Third, even
if Heck did not bar the plaintiff from bringing an
ineffective assistance counsel claim in a §1983 action,
the plaintiff has not alleged that Attorney Rosen was
ineffective. Finally, if the plaintiff had wanted to
represent himself at the appellate level, he has that right,
see Faretta v. California, 422 U.S. 806 (1975), and
he simply could have fired Attorney Rosen.
Brown v. Hicks, Case No. 15-cv-509-PP, Dkt. No. 23
at 2-3 (E.D. Wis.)
extent that the plaintiff contends that his appellate counsel
was ineffective, this claim is Heck-barred. Although
not entirely clear, it appears that the plaintiff wanted to
represent himself on his criminal appeal and that the
appointment of Attorney Rosen violated what the plaintiff
believes was his constitutional right to do so. He also
alleges, however, that Attorney Perri told him he could fire
his appellate attorney (which it does not appear that he
did). In any event, criminal defendants do not have a federal
constitutional right to represent themselves on direct appeal
from a conviction, although courts may exercise their
discretion to allow a defendant to proceed pro se on appeal.
Martinez v. Court of Appeal of Cal., Fourth Appellate
Dist., 528 U.S. 152, 154 (2000).
The plaintiff has raised these issues, in different form, in
Case No. 15-cv-509, and the court dismissed that case. He now
seeks to raise the claims again in this case, expecting the
result to be different. It will not be. The plaintiff has not
stated a claim that is either not barred by Heck or
that states a basis for relief that this court can grant.
Dkt. No. 8 at 7-8.
motion for reconsideration, the plaintiff does not address
the court's conclusions that even if Heck did
not bar his claim, he failed to state a claim. The plaintiff
does not also address the court's reference to his other
case (Case No. 15-cv-509), in which he raised in part the
same issues he raises here, which the court resolved, and
which currently is on appeal. The plaintiff has not