United States District Court, E.D. Wisconsin
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).
PAMELA PEPPER United States District Judge.
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.
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.
MOTION TO AMEND PETITION
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.
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.
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.
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.
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
Id. at 859.
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.
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.
MOTION TO ...