United States District Court, W.D. Wisconsin
OPINION AND ORDER
STEPHEN L. CROCKER, MAGISTRATE JUDGE.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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. ...