United States District Court, E.D. Wisconsin
JASON J. TYSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Stadtmueller U.S. District Judge
September 21, 2017, Jason J. Tyson (“Tyson”), a
federal prisoner, filed this motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255.
Before the Court are two matters. The first is the
government's request for an extension of time to answer
or otherwise respond to Tyson's motion, and the second is
Tyson's request for an order relating to discovery in
this case. The Court addresses each motion in turn.
Motion for Extension of Time
Court originally ordered the government to respond to
Tyson's motion by November 1, 2017. (Docket #2). The
government requested and was granted a two-week extension of
time. (Docket #4). Before that deadline arrived, Tyson sought
to amend his motion, and the Court granted that motion in an
order dated November 15, 2017. (Docket #7). Now the
government brings a new request for an extension, this time
seeking a little less than a month in additional time to
prepare its response to the amended motion. (Docket #9).
Court finds good cause to grant the government's
requested extension. However, two additional notes are
warranted. First, both of the government's requests for
extension of time in this case have been submitted by letter.
The Court generally does not entertain requests for relief
not raised by motion. Letters should not be used in lieu of
motions. Second, no further extensions of the
government's response deadline will be entertained for
Motion for Discovery
recently filed a motion requesting that the Court order his
trial and appellate counsel to submit affidavits relating to
his claims of ineffective assistance. (Docket #8). To the
extent the motion seeks authorization to conduct discovery
directed at these two individuals, it is granted. Rule 6 of
the Rules Government Section 2255 Proceedings provides that a
judge may, for good cause, “authorize a party to
conduct discovery under the Federal Rules of Criminal
Procedure or Civil Procedure, or in accordance with the
practices and principles of law.” The Court finds good
cause for the proposed discovery exists in this case, as the
testimony of Tyson's counsel will be indispensable in
proving his claims of ineffective assistance. See Bracy
v. Gramley, 520 U.S. 899, 908-09 (1997).
to the extent Tyson seeks a Court order directed at his
former lawyers, compelling them to produce affidavits,
(Docket #8 at 4), the motion must be denied. He cites no
authority requiring this Court to intervene in the collection
of evidence he may need to sustain his claims. Rule 6 clearly
provides that once authorized, Tyson may serve his trial and
appellate counsel with his own discovery requests under the
rules of procedure. Certainly Tyson's incarceration
limits his financial resources, id. at 3, but this
is his matter to litigate, and the costs of obtaining
relevant evidence will not be borne by others on Tyson's
request. Indeed, even for those prisoners granted leave to
proceed in forma pauperis, the Court does not absorb
the costs of litigation, including discovery. Porter v.
Dep't of Treasury, 564 F.3d 176, 180 n.3 (3d Cir.
2009); Lindell v. McCallum, 352 F.3d 1107, 1111 (7th
while the Court has the option to appoint counsel for
discovery purposes under Rule 6, it declines to do so here.
Habeas proceedings are civil in nature, and thus Tyson has no
automatic right to counsel. See Johnson v. Chandler,
487 F.3d 1037, 1038 (7th Cir. 2007); Winsett v.
Washington, 130 F.3d 269, 281 (7th Cir. 1997);
Resendez v. Knight, 653 F.3d 445, 446 (7th Cir.
2011). Under 18 U.S.C. § 3006A(a)(2)(B), the court may
appoint counsel to represent an indigent habeas petitioner if
“the interests of justice so require.” The court
should seek counsel to represent the petitioner “if,
given the difficulty of the case and the litigant's
ability, she could not obtain justice without an attorney,
she could not obtain a lawyer on her own, and she would have
had a reasonable chance of winning with a lawyer at her
side.” Forbes v. Edgar, 112 F.3d 262, 264 (7th
is no need for counsel at this early stage in the case.
Tyson's requests for sworn statements directed at his
former counsel should be simple, straightforward, and well
within Tyson's capacity to obtain notwithstanding his
lack of legal training. This case is unlike Wright v.
Gramley, 125 F.3d 1038, 1043 (7th Cir. 1997), where the
Seventh Circuit lamented a prisoner's difficulty in
obtaining affidavits from unknown potential witnesses in his
state criminal trial. Here, Tyson knows well both of the
individuals from whom he needs evidence, making his present
task far easier. Unless and until his former counsel fail to
comply with their obligations to respond to properly served
discovery requests, the Court will not intercede.
IT IS ORDERED the government's request
for an extension of time (Docket #9) be and the same is
IS FURTHER ORDERED that, on or before
January 8, 2018, the government shall file
an answer to Petitioner's motion to vacate, set aside, or
correct his sentence (Docket #1), or other appropriate
IS FURTHER ORDERED that Petitioner shall file a
response to the government's submission not later than
February 7, 2018;
IS FURTHER ORDERED that, if the government files a
motion in lieu of an answer, it may file a reply brief to