United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
October 25, 2016, Craig Tolonen (“Tolonen”) filed
this petition pursuant to 28 U.S.C. § 2254, asserting
that his state court conviction and sentence were imposed in
violation of the Constitution. (Docket #1). On November 16,
2016, the Court denied Tolonen's motion for leave to
proceed without prepayment of the $5.00 filing fee. (Docket
#11). On December 22, 2016, the Court dismissed the petition
for Tolonen's failure to pay that fee. (Docket #14). On
January 9, 2017, the Court received the full $5.00 fee for
Tolonen's petition, submitted on his behalf by his
brother, Eric Tolonen. Tolonen himself then moved to reopen
the case, which the Court permitted. (Docket #19).
reopening the case, the Court also screened the petition
pursuant to Rule 4 of the Rules Governing § 2254 Cases
in the United States District Courts. Id. at 1. The
Court found that found there are significant questions as to
whether Tolonen's petition is timely, whether he properly
exhausted his remedies in state court, and whether some or
all of his claims are procedurally defaulted. Id. at
2-5. As a result, the Court ordered the parties to submit
briefing on these procedural issues. Id. at 5.
pending are several motions filed by Tolonen. The Court will
address each motion in turn.
Tolonen's Motion for Appointment of Counsel
Tolonen has filed a motion for appointment of counsel.
(Docket #24). As a civil litigant, Tolonen has no automatic
right to court-appointed counsel. Luttrell v.
Nickel, 129 F.3d 933, 936 (7th Cir. 1997). However,
under 28 U.S.C. § 3006A(a)(2), the court may appointment
counsel if “the interests of justice so require.”
The court should seek counsel to represent the petitioner if:
(1) he has made reasonable attempts to secure counsel; and
(2) “‘the difficulty of the case-factually and
legally-exceeds the particular [petitioner's] capacity as
a layperson to coherently present it.'” Navejar
v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (quoting
Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. banc
2007)); see also Evans v. Thurmer, No. 09-C-0494,
2010 WL 3279378, at *1-2 (E.D. Wis. Aug. 19, 2010) (applying
Pruitt test to request for appointment of counsel in
habeas proceedings). The Seventh Circuit has emphasized that
“[t]he question is not whether a lawyer would present
the case more effectively than the pro se [petitioner];
‘if that were the test, district judges would be
required to request counsel for every indigent
litigant.'” Pruitt, 503 F.3d at 655
(quoting Johnson v. Doughty, 433 F.3d 1001, 1006
(7th Cir.2006)) (internal quotation omitted). Instead,
“[t]he question is whether the [petitioner] appears
competent to litigate his own claims, given their degree of
cites several reasons he believes counsel should be appointed
to represent him at this time, but none are availing. First,
he claims he has the intellect of an eighth-grader and that
he suffers from learning disabilities. Id. at 2.
Although Tolonen avers that these things are true, he offers
little corroborating evidence. See Henderson v.
Ghosh, 755 F.3d 559, 566 (7th Cir. 2014) (noting sources
showing the inmate's below-average IQ, fifth-grade
education, and functional illiteracy). The only evidence he
submitted in connection with this motion is a letter from his
former special education teacher about his limitations in
reading and understanding, see (Docket #24-1), but
the letter is from 2007 and therefore does not give a clear
picture of Tolonen's capabilities today, ten years later.
Nor does the letter show that he is functionally unable to
cope with the demands of litigation, despite an apparent need
to read and write slowly.
Tolonen argues that he needs counsel because his case will
require complex expert testimony, discovery relating to a
past Wisconsin state-court prosecution, and post-conviction
DNA testing. Id. at 2-3. But Tolonen is putting the
cart before the horse: however complex may be the merits of
this case, the present questions before the Court concern
procedural matters only. See (Docket #19). Tolonen
does not suggest that such matters, standing alone, are
beyond his ken. Thus, the Court concludes that appointment of
counsel is not warranted at this time, and the motion will be
denied without prejudice.
Tolonen's Motion for Leave to Proceed Without Prepayment
of Filing Fee
also filed another request for leave to proceed without
prepayment of the filing fee. (Docket #26). He has already
paid the fee, however, and it will not be refunded to him. He
seems to offer this motion to show that he is indigent, which
he believes in turn supports his request for counsel. While
his inability to afford counsel is a necessary condition for
the appointment thereof, it is not a sufficient one.
Pruitt, 503 F.3d at 655. As demonstrated above,
other factors militate against the appointment of counsel at
the present time.
Motions for Leave to Conduct Discovery and DNA
other motions request leave of the Court to conduct
discovery. (Docket #28, #29, and #31). He wants to seek
discovery of the case file in a 2006 criminal action in
Washington County Circuit Court as well as post-conviction
DNA testing of a washcloth entered as evidence against him at
his trial. Both of these discovery requests relate to the
merits of Tolonen's petition. To reiterate, the Court has
not reached that juncture. Unless and until it finds that
Tolonen has cleared the procedural hurdles that appear to
block his path, the Court will not consider discovery
requests relating to the merits of the petition. See
United States ex rel. Erickson v. Shomig, 162 F.Supp.2d
1020, 1056 (N.D. Ill. 2001) (“[D]iscovery in a federal
habeas case is not available to resuscitate an otherwise
procedurally barred claim[.]”); see also Bracy v.
Gramley, 520 U.S. 899, 904 (1997) (finding that unlike
other civil litigants, a habeas petitioner is not entitled to
discovery as a matter of course); Hubanks v. Frank,
392 F.3d 926, 933 (7th Cir. 2004) (noting that a petitioner
must show “good cause” supporting a proposed
discovery request in habeas proceedings).
Tolonen requests leave to obtain a mental examination of
himself. (Docket #31). He relies on Davis v.
Humphreys, 747 F.3d 497, 500 (7th Cir. 2014), which
holds that mental incompetence can sometimes justify
equitable tolling of the statute of limitations for habeas
petitions. Because timeliness and equitable tolling may be
among the procedural issues addressed in the upcoming
briefing, Tolonen reasons, he must be permitted leave to
obtain a mental examination to assess his competency. (Docket
#31 at 1-2). He contends that his mental competency has
“played a major role in not properly following court
procedure in the past.” Id. at 2.
does not compel Tolonen's sought-after result. In that
case, the prisoner presented a ten-year-old report showing
that his IQ was 49-well below the threshold for a diagnosis
of intellectual disability. Humphreys, 747 F.3d at
500. Yet even this evidence was not enough on its own to
convince the Seventh Circuit that equitable tolling was
appropriate. Id. The court observed that “[i]t
is improper to leap from one IQ test to a conclusion that a
particular person is unable to understand and protect his own
legal interests.” Id. Also of note to the
court was the fact that the petitioner did not challenge his
conviction on the ground of his incompetence, thereby
suggesting that he was competent at or around the time he
should have endeavored to timely file his petition. See
Id. The Circuit court remanded ...