United States District Court, E.D. Wisconsin
ALAN M. BARTLETT, Petitioner,
PAUL PENZONE, Respondent.
STADTMUELLER, U.S. DISTRICT JUDGE
filed this action on November 26, 2018 pursuant to 28 U.S.C.
§ 1651, the All Writs Act. (Docket #1). He is currently
incarcerated in the Maricopa County Jail in Arizona.
Respondent Paul Penzone is the Maricopa County Sheriff.
Petitioner states that he is challenging a decision of the
Supreme Court of Wisconsin's Office of Lawyer Regulation
(“OLR”) not to investigate or sanction
Christopher Rawsthorne (“Rawsthorne”), an
Assistant United States Attorney in the Eastern District of
Michigan. Id. at 1-2. He wants this Court to order
that such an investigation be opened and that he be afforded
an evidentiary hearing therein. Id. at 10.
was indicted in the District of Alaska in 2013 and a warrant
was issued for his arrest. See United States v.
Bartlett, 3:13-cr-00044-RRB (D. Alaska). Petitioner was
arrested in the Eastern District of Michigan, made his
initial appearance in that district, and was ordered detained
and transferred to the District of Alaska. See Fed.
R. Crim. P. 5(c). Rawsthorne represented the government at
the proceedings in the Eastern District of Michigan.
asserts three claims. First, he contends that Rawsthorne
violated his Sixth Amendment rights by prosecuting him
pursuant to an allegedly “fake” grand jury
indictment and without a transcript of the grand jury
proceedings in hand. Id. at 4. Second, Petitioner
believes that the OLR violated his Eighth Amendment right to
be free from cruel and unusual punishment by refusing to
investigate Rawsthorne. Id. at 6. Finally,
Petitioner argues that the OLR violated his due process right
under the Fourteenth Amendment by not conducting an
evidentiary hearing related to his complaint against
Rawsthorne. Id. at 7.
November 28, 2018, Magistrate Judge William E. Duffin, to
whom this case was originally assigned, issued a report and
recommendation to this Court that this action be dismissed.
Court quotes the pertinent portion of the recommendation:
Over the past roughly two months, Bartlett has filed four
other very similar actions in district courts in the Ninth
Circuit asking courts to order investigations by the
California State Bar, see Bartlett v. Penzone,
2:18-cv-02598-TLN-DMC (E.D. Cal.) (filed Sept. 21, 2018);
Bartlett v. Penzone, 2:18-cv-03052-CKD (E.D. Cal.) (filed
Nov. 26, 2018), the Washington State Bar Association,
Bartlett v. Penzone, 18-cv-01574-RAJ-JPD (W.D. Wash.) (filed
Oct. 25, 2018), and the Alaska Bar Association, Bartlett v.
Penzone, 1:18-cv-00013-JKS (D. Alaska) (filed October 9,
2018). Each action relates to some manner of alleged
misconduct by a lawyer who crossed paths with Bartlett.
There are a myriad of problems with Bartlett's petition.
Rather than detailing each of them, the court finds it most
efficient to focus on the heart of Bartlett's claim-that
Rawsthorne somehow acted improperly when he represented the
United States at a proceeding under Fed. R. Crim. P. 5(c)(2)
without having a transcript of the grand jury proceedings
that resulted in the indictment against Bartlett.
Grand jury proceedings are secret. Fed. R. Crim. P. 6(d),
(e)(2). There is absolutely no requirement that a prosecutor
possess a transcript of a grand jury proceedings in order to
proceed against a defendant. The vote of the grand jurors and
the fact that at least 12 of the 16 to 23 grand jurors
present concluded that probable cause existed to charge the
defendant with the offenses alleged is reflected by the
foreperson's signature on the indictment. Nothing more is
required. In short, even if this court could, by way of a
petition under 28 U.S.C. § 1651 or any other form of
action, order the Wisconsin Office of Lawyer Regulation to
undertake an investigation, the facts alleged in
Bartlett's petition do not present a plausible claim of
attorney misconduct. Therefore, the court finds no basis for
the relief Bartlett seeks.
(Docket #5 at 1-3).
timely filed an objection to Magistrate Duffin's
recommendation. (Docket #6). As to the first claim,
Petitioner contends that a transcript of a grand jury
proceeding is necessary to create a valid indictment, and
that “where there is a valid grand jury, the transcript
or record of the proceeding becomes part of the record,
usually lodged at Doc #2 or Doc #3.” Id. at
5-6. Petitioner says that the grand jury indictment in his
case is fake and suggests that Rawsthorne knew or should have
known this when Petitioner made his initial appearance.
Id. at 6. As to the second claim, Petitioner argues
that he has been harmed by Rawsthorne's conduct, and that
the OLR's refusal to investigate demonstrates deliberate
indifference to that harm. Id. at 7-8. As to the
final claim, Petitioner maintains that he made a prima
facie showing sufficient to entitle him to an
evidentiary hearing. Id. at 8.
Court quite agrees with Magistrate Duffin's analysis.
Petitioner gives no valid basis to disagree with the
recommendation's conclusion. His belief that a transcript
of grand jury proceedings must become part of the record in
his criminal case is simply wrong, and he cites no law or
rule requiring as much. Without any wrongdoing on
Rawsthorne's part, the second and third claims must
likewise fail. Magistrate Duffin is also correct that there
are many other deficiencies in the petition, including that
Section 1651 is not a proper vehicle for this type of relief,
that this District has no connection to Petitioner's
criminal cases, and that success in this matter would imply
the invalidity of his criminal conviction in violation of the
rule set out in Heck v. Humphrey, 512 U.S. 477
(1994). But in any event, there is no error in Magistrate
Duffin's recommendation, and this Court will therefore
adopt the same. This action will be dismissed with prejudice.
on December 14, 2018, Petitioner filed a notice of appeal of
Magistrate Duffin's recommendation. (Docket #7). This
was, of course, premature, as the recommendation was not a
final order of dismissal. Petitioner also filed a motion for
leave to proceed on his appeal in forma pauperis.
(Docket #8). Petitioner may not proceed without prepayment of
the filing fee on appeal if the Court certifies in writing
that the appeal is not taken in “good faith.” 28
U.S.C. § 1915(a)(3). To determine whether Petitioner
takes the appeal in “good faith, ” the Court must
determine whether “a reasonable person could suppose
that the appeal has some merit.” Walker v.
O'Brien, 216 F.3d 626, 632 (7th Cir. 2000); see
also Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir.
2000). In light of the foregoing, no reasonable person would
believe that Petitioner's action has any merit. The Court
will, therefore, deny his motion for leave to proceed in
forma pauperis on appeal.
IT IS ORDERED that Magistrate Judge William
E. Duffin's report and recommendation (Docket #5) ...