United States District Court, E.D. Wisconsin
ORDER DENYING DEFENDANT'S REQUEST FOR SENTENCING
TRANSCRIPTS (DKT. NO. 181)
PAMELA PEPPER United States District Judge.
December 7, 2004, a grand jury indicted the defendant. Dkt.
No. 10. Attorney Dan Resheter ended up representing the
defendant, dkt. no. 20, and after the parties litigated
various pretrial motions, the case went to trial before Judge
Rudolph T. Randa, dkt. no. 69. The jury returned guilty
verdicts against the defendant on two counts of the
defendant appealed his conviction and sentence. Dkt. No. 114.
On August 13, 2007, the Seventh Circuit Court of Appeals
affirmed in part, and vacated and remanded in part. Dkt. No.
158. Because of the remand, Judge Randa amended the judgment.
Dkt. No. 160. Just shy of two years later, the defendant
filed a habeas petition under 28 U.S.C. §2255.
Dkt. No. 166. Judge Randa denied that motion on August 18,
2015. Dkt. No. 170. On July 28, 2016, the defendant filed
another habeas petition under §2255. Dkt. No.
179. This court denied that petition on April 27, 2017.
See Otero v. United States, Case No. 16-cv-994, E.D.
Wis. (Pepper, J.), dkt. no. 7.
5, 2017, the court received a letter from the defendant,
asking the court to help him obtain the transcripts of his
July 19, 2005 sentencing hearing. Dkt. No. 181. The defendant
indicates that he corresponded with the court reporter
who'd recorded the sentencing, asking her for the
transcripts, but that she had told him that under the
court's rules, the transcripts had been destroyed some
two years ago. The defendant reasoned that, because he had
been in some form of post-conviction litigation (appealing,
filing habeas petitions) for a number of years, he
"suspect[ed]" that the transcripts were "most
likely" in the case file that either this court or
"Your Clerk of Court" might possess. So he asked
the court to help him get the transcripts, so that he could
expeditiously file post-conviction motions. Id. The
court is not sure what motions the defendant is
contemplating. Judge Randa imposed the original sentence
almost twelve years ago, and the amended sentence almost ten
years ago. The defendant already has filed one appeal and two
habeas petitions. Many post-conviction motions
deadlines- perhaps all of those deadlines-have passed. But
the court leaves that to the defendant.
court cannot provide the defendant with his sentencing
transcripts, because it does not have them. First, as the
defendant knows, Judge Randa presided over his case; this
court received the case after Judge Randa's death in
September 2016. This court does not keep paper files; all of
this court's documents reside in the court's
electronic database. Judge Randa did keep paper
files, but-as Judge Randa's court reporter apparently
already has told the defendant-the court has a document
retention/destruction policy. Judges who keep paper files do
not keep them forever.
what happened in the defendant's case:
defendant filed his notice of appeal on July 20, 2005. Dkt.
No. 114. A day later, the docket indicates, the clerk's
office prepared the appellate record to send to the Seventh
Circuit. The docket notation indicates that the record
consisted of "1 vol. pleadings & 4 transcript."
On April 5, 2006, the clerk's office sent the pleadings
and transcripts to Attorney Jason R. Epstein in Chicago-the
court assumes that this is the lawyer who represented the
defendant on appeal. Dkt. No. 147. The attached cover letter
stated, "I am enclosing one (1) volume of pleadings the
docket sheet and (4) volumes of transcripts in this case for
your review." Id. The letter also required
Attorney Epstein to acknowledge receipt of those documents,
and to return the original documents to the clerk of court by
April 26, 2006. Id. Thus, Attorney Epstein had about
three weeks to copy whatever portions of the record he wanted
to copy, and then to return the documents to the clerk. The
clerk's office sent the certified record to the court of
appeals on December 11, 2006, and the appellate court
received it on December 18, 2006, dkt. no. 155.
Seventh Circuit issued its decision on August 13, 2007. Dkt.
No. 158. Two days later, that court returned the record
(including the four volumes of transcripts) to the clerk of
court for the Eastern District of Wisconsin. Judge Randa
issued the amended judgment that same day. Dkt. No. 160.
March 12, 2008, the clerk's office sent a letter to every
lawyer who'd appeared in the case-the prosecutor
(Jonathan H. Koenig), and three defense attorneys (Calvin R.
Malone, Daniel D. Resheter, Jr. and Robert W. Keller). Dkt.
No. 161. The letter told all of the lawyers that if they
wanted trial exhibits, they should contact the clerk's
office by March 26, 2008. Id. The letter explained
that any unclaimed exhibits would be destroyed. Id.
Apparently none of the lawyers asked for any of the exhibits
or documents, because on March 31, 2008, the clerk's
office destroyed the documents. Dkt. No. 162.
court notes that on March 29, 2017, the clerk's office
received a letter from the defendant, asking for a copy of
the docket, a copy of the sentencing memo his lawyer (Dan
Resheter) prepared, and a copy of the sentencing transcripts.
Dkt. No. 180. The court encloses with this order a copy of
the docket to date (which it printed off of the court's
electronic case management computer program), a copy of
Resheter's sentencing memo (from the same source), and a
couple of other documents the defendant might find of use.
The court cannot, however, print the transcripts off of the
computer program, because at the time the defendant was
sentenced, and then appealed, the court did not digitize
exhibits-the court is not even sure if the clerk's office
had the ability to digitize exhibits in 2007-2008.
the court cannot provide the defendant with the transcript of
his sentencing. All the court can suggest is that the
defendant contact one of his prior lawyers-Mr. Resheter, or
perhaps Mr. Epstein in Chicago-and see if they retained the
court DENIES the defendant's request for