United States District Court, W.D. Wisconsin
D. PETERSON District Judge.
petitioner Albert Edwards, a prisoner incarcerated at the
Federal Correctional Institution in Oxford, Wisconsin, seeks
a writ of habeas corpus under 28 U.S.C. § 2241. Edwards
challenges his sentence from the United States District Court
for the Northern District of Illinois, arguing that the
Supreme Court's decision in United States v.
Mathis, 136 S.Ct. 2243 (2016), invalidates his sentence,
which was enhanced by his career-offender status under the
federal sentencing guidelines. I screened Edwards's
petition and allowed him to proceed. Dkt. 3.
motions are pending before the court: (1) Edwards's
motion for appointment of counsel, Dkt. 6; and (2)
respondent's motion for clarification and an extension of
time, Dkt. 7. I will deny Edwards's motion and grant
respondent's motion in part.
Motion for appointment of counsel
habeas petition challenging a sentence is “not part of
the original criminal proceeding; it is an independent civil
suit.” Rauter v. United States, 871 F.2d 693,
695 (7th Cir. 1989). So given the civil nature of the
proceeding, a habeas petitioner does not have a
constitutional right to counsel. Id. But the court
may appoint counsel for a petitioner seeking habeas relief
under 28 U.S.C. § 2241 if the appointment of counsel
would serve “the interests of justice” and the
petitioner is “financially eligible.” 18 U.S.C.
evaluating a motion for appointment of counsel in habeas
cases, the Seventh Circuit has applied a similar standard to
the one that applies under 28 U.S.C. § 1915(d). See
Winsett v. Washington, 130 F.3d 269, 281 (7th Cir.
1997). The district court may consider, among other things,
five non-exclusive factors: (1) the complexity of the case;
(2) the petitioner's ability; (3) whether the petitioner
“could obtain justice without an attorney”; (4)
whether the petitioner “could not obtain a lawyer on
[his] own”; and (5) whether the petitioner would have
“a reasonable chance of winning with a lawyer at [his]
side.” Id. (quoting Forbes v. Edgar,
112 F.3d 262, 264 (7th Cir.1997)); see also Howard v.
Gramley, 225 F.3d 784, 794 (7th Cir. 2000) (quoting
Winsett, 130 F.3d at 281). “Appointing counsel
for pro se petitioners in habeas corpus cases is a power
commended to the discretion of the district court in all but
the most extraordinary circumstances.”
Winsett, 130 F.3d at 281.
as Edwards acknowledges, the central problems with his
petition are that he based his petition with limited
understanding of his prior criminal proceedings and that he
lacks means to retrieve the relevant record from those
proceedings. Dkt. 6, at 1-2. But these problems will be
resolved once respondent files his answer with the relevant
record attached, as I will direct respondent to do in this
order. And, without the record, it is far from clear whether
Edwards has a reasonable chance of success even with an
attorney. Once the parties brief the merits of Edwards's
petition with the benefit of the full record, Edwards may
renew his motion. I will then evaluate whether appointing
counsel would be appropriate. Accordingly, I will deny
Edwards's motion without prejudice.
Motion for clarification and an extension of time
screening order, I directed respondent to file an answer and
set a briefing schedule. Dkt. 3, at 8-9. Respondent moves for
clarification on whether he must file an answer in a Section
2241 case. Dkt. 7, ¶ 4. He also seeks a 30-day extension
to file a combined procedural and substantive response to the
petition in lieu of an answer. Id. ¶
will grant respondent's motion in part. I will require
respondent to file an answer, grant an extension of time, and
set a new briefing schedule.
district court may apply the Rules Governing Section 2254
Cases to Section 2241 cases. See Rule 1(b), Rules
Governing Section 2254 Cases. Under Rule 5 for Section 2254
cases, a respondent is not required to file an answer
“unless a judge so orders.” Thus, although
service of the petition by itself does not obligate a
respondent to file an answer, a district judge can
nonetheless require a respondent to do so. I have required
respondents in Section 2241 cases to file answers in the
past. See, e.g., Ruiz v. Williams,
No. 15-cv-372, Dkt. 5 (W.D. Wis. July 8, 2016); Gray v.
Kroger, No. 16-cv-203, Dkt. 3 (W.D. Wis. June 2, 2016).
And other district courts within this circuit have done the
same. See, e.g., Robinson v.
Cross, No. 16-cv-20, 2016 WL 397898 (S.D. Ill. Feb. 2,
2016); Gillum v. Rios, No. 11-cv-1056, 2011 WL
693598 (C.D. Ill. Feb. 18, 2011); Kramer v. Jenkins,
108 F.R.D. 429 (N.D. Ill. 1985). So the practice of requiring
respondents to file answers in Section 2241 cases is neither
new nor unusual.
answer is valuable for the court and the parties in a habeas
proceeding. As the Advisory Committee explains,
[An answer] permits the court and the parties to uncover
quickly the disputed issues; it may reveal to the
petitioner's attorney grounds for release that the
petitioner did not know; and it may demonstrate that the
petitioner's claim is wholly without merit.
Comm. Notes to Rule 5; see also Williams v.
Calderon, 52 F.3d 1465, 1483 (9th Cir. 1995) (“The
purpose of the answer is to frame the issues in dispute, as
well as to ferret out unmeritorious petitions.”).
Edwards's case is a good example. Edwards presented only
limited portions of the record, and the success of his
petition will depend, at least in part, on the sentencing
court's reasoning. Dkt. 3, at 7-8. Respondent's
answer and the relevant transcripts attached to it will show
the sentencing court's reasoning, and after reviewing the
record, Edwards can amend, withdraw, or file a new brief in
support of his petition.
this process allows Edwards two cracks at briefing the
merits. Indeed, many habeas petitioners file their opening
briefs at the same time they file their petitions, and that
is what Edwards did here. But the Rules do not require a
habeas petitioner to file a brief at the commencement of a
habeas proceeding. See Rules 2 and 3, Rules
Governing Section 2254 Cases. And the Advisory Committee Note
above envisions allowing a habeas petitioner to have a second
chance on the merits after reviewing the answer: it
contemplates allowing the petitioner to raise additional
grounds that he did not originally raise at the commencement
of the habeas proceeding. This rationale is particularly
relevant here. I do not expect Edwards, a prisoner, to have
kept the transcripts related to his 1994 sentencing, which
was 23 years ago, and he indicates that he ...