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Brown v. Foster

United States District Court, E.D. Wisconsin

May 22, 2017

ENNIS BROWN, Petitioner,
v.
BRIAN FOSTER, Respondent.

          ORDER GRANTING PETITIONER'S MOTION TO AMEND THE PETITION (DKT. NO. 15), DENYING WITHOUT PREJUDICE MOTION TO APPOINT COUNSEL (DKT. NO. 16), GRANTING MOTION TO CLARIFY SCREENING ORDER (DKT. NO. 17), AND DENYING MOTIONS TO RELEASE PETITION PENDING 2254 RELIEF (DKT. NOS. 21, 22).

          HON. PAMELA PEPPER United States District Judge.

         On November 8, 2016, Petitioner Ennis Brown filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. Dkt. No. 1. He alleged that he was convicted and sentenced in violation of the Fourth and Sixth Amendments. Id. On January 9, 2017, the court screened his petition and ordered the respondent to file an answer within sixty days of the order. Dkt. No. 9. The Wisconsin Department of Justice accepted service on January 11, 2017. Dkt. No. 10. There now are several motions pending.

         The petitioner has filed: a motion to amend his petition, Dkt. No. 15; a motion to appoint counsel, Dkt. No. 16; and two motions asking the court to release him from custody pending its ruling on his habeas petition, Dkt. Nos. 21, 22. The respondent has filed: filed a motion to clarify the screening order, Dkt. No. 17; and a brief in opposition to the petition, Dkt. No. 24.

         A. MOTION TO AMEND PETITION

         In the screening order, the court allowed the petitioner's Fourth Amendment illegal arrest and detention claim to proceed, but it warned the petitioner that unless he could show that he had tried to litigate these claims in state court (or lacked the full and fair opportunity to do so), those claims likely were barred. Dkt. No. 9 at 3. The court also allowed the petitioner's Sixth Amendment ineffective assistance of counsel and speedy trial claims to proceed. Id. at 2. The court did not allow the petitioner to proceed on his claim of miscarriage of justice. Id.

         On February 2, 2017, the petitioner filed a motion to amend the petition (dated February 1, 2017). Dkt. No. 15. He attached a proposed amended petition to the motion. Dkt. No. 15-1. Although the petitioner stated that he was adding five new grounds to the amended petition, dkt. no. 15 at 1, the court can find only two new claims: an Eighth Amendment double jeopardy claim, dkt. no. 15-1 at 40, and a Fourteenth Amendment insufficient evidence claim, id. at 46. The remaining “grounds” really are supplemental to the arguments that the petitioner made in the original petition-presumably to address the issues raised in the court's screening order. The petitioner's prosecutorial misconduct claim augments his Sixth Amendment ineffective assistance claim. Id. at 32. The absence of jurisdiction claim augments the petitioner's Fourth Amendment illegal detention claim. Id. at 40. The abuse of discretion claim augments the speedy trial violation claim. Id. at 41.

         A petitioner may amend his complaint under 28 U.S.C. §2242, which provides that a petition “may be amended or supplemented as provided in the rules of procedure applicable to civil actions.” Federal Rule of Civil Procedure 15(a) allows amendments to pleadings as a matter of course if the party files them within twenty-one days of service of the original complaint. If the party files the amendment outside of that twenty-one-day period, “only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” This court may deny leave to file an amended pleading in the event of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010) (quoting Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007)(quoting Foman v. Davis, 371 U.S. 178, 182 (1962))). While a court may deny a motion for leave to file an amended complaint, courts don't favor denials. Id.

         The service date of the original petition was January 11, 2017. Dkt. No. 10. The petitioner didn't need the court's permission to file his amended complaint if he filed by February 1, 2017. See Fed.R.Civ.P. 15(a). The petitioner dated his motion February 1, 2017; the court received it on February 2, 2017. Dkt. No. 15.

         The Seventh Circuit has adopted the mailbox rule-a rule that deems a document “filed” on the date it was put in the mail-for habeas petitioners, when the question is whether the prisoner's suit is barred by the statute of limitations. Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999) (“We join the overwhelming authority that the Houston mailbox rule should be extended to prisoners filing pro se habeas petitions, and, for statute of limitations purposes, a petition is deemed filed when given to the proper prison authorities and not when received by the district court clerk.”) The court has reached a similar conclusion with regard to whether a prisoner has met a filing deadline. In Taylor v. Brown, 787 F.3d 851 (7th Cir. 2015), the court stated:

We have not yet had occasion to apply the prison mailbox rule to documents that are e-filed by prison staff rather than sent through the prison mailroom. However, pro se prisoners are no more able to guarantee that properly tendered documents are e-filed than that they're mailed. Accordingly, we conclude that a pro se prisoner's legal documents are considered filed on the date that they're tendered to prison staff in accordance with reasonable prison policies, regardless of whether they are ultimately mailed or uploaded.

Id. at 859.

         The court does not know when the petitioner gave his amended complaint to prison staff. But given that he dated his pleading the day before the court received it, it would not be surprising if he'd given the document to institution staff the day he signed it, and staff e-mailed it the next day. If that is what happened, then the petitioner does not need the court's permission to amend his complaint.

         Even if the court concluded that the petitioner filed his amended pleading more than twenty-one days after the original complaint, however, the court still would allow the petitioner to amend his complaint. It appears that this court's screening order is what motivated the petitioner to file an amended complaint. There is no indication that he filed the amended complaint in order to delay proceedings or to harass the opposing party. The new claims that he raises involve facts and circumstances he already had raised in the initial petition. This means that the amended petition relates back to the initial petition, avoiding any potential statute of limitations issues. Mayle v. Felix, 545 U.S. 644, 664, 125 S.Ct. 2562, 2574, 162 L.Ed.2d 582 (2005) (“So long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order.”); Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir. 2008) (“It seems unlikely that all of the claims raised in the second petition would be untimely. At least two of the “new” claims are almost identical to claims he raised in the first petition (admissibility of statements to police and the voluntariness of the plea), so it appears at least those two claims are ‘tied to a common core of operative facts'-indeed the same facts-as their counterparts in the first petition.”) The court will grant the petitioner's motion to amend.

         B. MOTION TO ...


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