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Thompson v. Foster

United States District Court, W.D. Wisconsin

July 29, 2019

BRIAN FOSTER, Warden, Waupun Correctional Institution, Respondent.



         This is a petition for habeas corpus relief brought under 28 U.S.C. § 2254 by Rodell Thompson, an inmate at the Waupun Correctional Institution. Before the court is petitioner's motion for the court to appoint a lawyer to represent him. Dkt. 30. Also requiring discussion is a motion filed by petitioner last October in which he sought to prevent the institution from sending outside the prison some of his legal materials that he had entrusted to another inmate named Jerry Wheeler. Dkt. 17. As explained below, the motion for appointment of counsel will be denied and petitioner's motion for an order prohibiting the institution from sending legal documents out will be denied as moot. However, the court will establish a new briefing schedule to give petitioner one last opportunity to file a brief in support of his habeas petition, if he so chooses.


         Let's begin with petitioner's legal materials. On September 17, 2018, petitioner filed a motion asking the court to order respondent to allow petitioner access to legal documents that the had provided to another inmate, Jerry Wheeler, who was helping him with his habeas petition. Dkt. 9. Petitioner asserted that institution staff had seized these documents, along with numerous other materials, from Wheeler because Wheeler was over the limit on personal property allowed by DOC regulations. As a result, Wheeler had been forced to send some of them out with a third party, Pastor Zimmerman, or else they would have been confiscated. However, Pastor Zimmerman had sent all the documents back and they were again being held in the institution's property room. Petitioner said Wheeler was in the process of trying to retrieve the documents through the inmate complaint process, but that this process would likely not be concluded before petitioner needed to file documents in this case. Petitioner asked this court for an order allowing Wheeler to go through the confiscated documents to retrieve those pertaining to petitioner's case and return them to him.

         On September 18, 2018, this court entered an order directing the assistant attorney general to “check with WCI to verify the gist of petitioner's report and to ask how and when WCI intends to return any confiscated documents to the inmates who entrusted them to Wheeler.” Dkt. 14. The State was ordered to do so not later than October 31.

         On October 23, 2018, petitioner filed a document captioned “Emergency Motion For an Order To The Respondent Not To Force My Legal Documents Relevant To This Case To Be Sent Out.” Dkt. 17. Petitioner essentially repeated his previous motion, but said that waiting for the State's response until October 31 might be too late to prevent the documents from being again sent out of the institution with a third party.

         As it turns out, petitioner's motion was already too late. According to respondent, who responded on October 30, Wheeler's excess legal documents had been sent out of WCI with Pastor Zimmerman on September 17, 2018, which was the date on which petitioner filed his original motion. Dkt. 21. Thus, respondent argued, petitioner's motion was moot because the materials confiscated from Wheeler's cell were no longer in his possession. Moreover, he pointed out that petitioner had not demonstrated why he needed the materials or that his lack of access to them would prevent him from prosecuting his habeas corpus petition. Id. at 7-8. Finally, said respondent, he would soon be filing his response to the petition that would include the relevant portions of the record as well as the index from petitioner's state court appeal. Counsel promised to supplement the record with any additional documents from the record at petitioner's request.

         Respondent filed his answer to the petition with the relevant materials on November 15, 2018. Dkt. 22. Petitioner was directed to file a brief in support of his petition by December 17, 2018. On December 4, 2018, he asked for an extension, asserting that Wheeler was busy with lots of cases and that he did not know when he would get his documents back from Pastor Zimmerman. Dkt. 23, ¶3(D). That same day, this court granted petitioner's request for an extension, giving petitioner until February 15, 2019 to file his brief. Dkt. 24.

         Two days later, however, petitioner filed a motion to stay the petition so that he could return to state court to pursue unexhausted claims. Dkt. 26. Although captioned as a motion to stay, the bulk of the motion complained that WCI staff had unlawfully confiscated Wheeler's legal materials and then respondent had “lied” about it. Like the previous motion for an extension, the motion for a stay confirmed that Wheeler's excess legal materials were no longer in the institution but had been picked up by Pastor Zimmerman. Petitioner's motion suggested that at least some of those materials pertained to petitioner's habeas petition. Dkt. 26, at 29 (indicating that petitioner “needs the note, drafted briefs, and argument prepare by Wheeler” and other inmates).

         On December 26, 2018, this court denied the motion to stay, and indicated that it would address petitioner's concerns about the institution's handling of his legal materials in a separate order. Dkt. 27, n.2. However, through an oversight, the court did not issue such an order and petitioner said nothing more about the matter.

         Petitioner failed to file a brief on or before his February 15 deadline, and the petition was placed under advisement. Two months later, on April 22, 2019, petitioner asked the court for a status update, dkt. 28, to which the clerk of court responded that the petition was under advisement to presiding judge William Conley. Dkt. 29. Approximately a month later, on May 28, 2019, petitioner filed the instant motion seeking the appointment of counsel.


         In the context of a petition under § 2254, a federal court may appoint counsel for a financially eligible petitioner when “the interests of justice so require.” 18 U.S.C. § 3006A(g); Johnson v. Chandler, 487 F.3d 1037, 1038 (7th Cir. 2007). When ruling on requests for counsel, courts must consider the complexity of the case and the litigant's abilities. Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007). As for his abilities, petitioner asserts that he cannot read or spell and therefore will not be able to prosecute his petition without the assistance of counsel. At the same time, however, he asserts that he wrote to three different law firms to seek assistance, and he filed the instant motion, which is coherent and logical. Petitioner does not say whether he prepared these documents on his own or had assistance from Wheeler or another jailhouse lawyer. Thus, petitioner's reading and writing abilities are difficult to assess.

         In any event, this case is not particularly complex. Petitioner brings three claims of ineffective assistance of trial counsel, all of which were raised in the state trial court, and two of which were raised in the state court of appeals. Respondent has submitted with his response a copy of the relevant state court proceedings and the briefs filed by petitioner's attorneys in the Wisconsin Court of Appeals and Wisconsin Supreme Court. Dkt. 22. Even without legal training, petitioner should be able to use these materials to draft a brief in support of his petition. Additionally, this court is well-versed in the law governing habeas corpus procedure and the ineffective assistance of counsel claims raised in the petition. It handles pro se cases on a regular basis and strives to ensure that unrepresented litigants are treated fairly. At this stage of the proceedings, and given the rather straightforward issues raised in the petition, the court is satisfied that petitioner will receive a fair adjudication of his petition even without the assistance of counsel. ...

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