Seifer v. United States

226 F.Supp.3d 912

Christopher A. SEIFER, Petitioner,

v.UNITED STATES of America, Respondent.

Case No. 16–CV–1465–JPS

United States District Court, E.D. Wisconsin.

Signed December 23, 2016

Robert R. Henak, Henak Law Office SC, Milwaukee, WI, for Petitioner.

Benjamin W. Proctor, Scott J. Campbell, United States Department of Justice, Milwaukee, WI, for Respondent.

ORDER

J.P. Stadtmueller, U.S. District Judge

On December 14, 2016, the Court granted the respondent's motion to compel (the "Order"). (Docket # 5). That same day, the petitioner filed a motion to reconsider the Order. (Docket # 7). The Court will also consider his response to the motion to compel, simultaneously filed on December 14, 2016. (Docket # 6). The respondent submitted a response to the motion for reconsideration on December 20, 2016, and the petitioner offered his reply the next day. (Docket # 8 and # 9).

The Court declines to countermand the Order. Rule 7 of the Rules Governing Section 2255 Proceedings provides that "if the motion is not dismissed [upon the Court's initial screening], the judge may direct the parties to expand the record by submitting additional materials relating to the motion." Fed. R. Sec. 2255 Pro. 7(a). The materials may include affidavits. Id. at 7(b). These materials are important because they form the basis of the Court's determination on whether an evidentiary hearing is necessary, as dictated by Rule 8. See id. at 8(a). Thus, the Court was duly empowered to issue the Order and it is necessary to the Court's future determinations in this matter.

This conclusion is buttressed by Lafuente . There, the Seventh Circuit described the applicable law:

A § 2255 petitioner is entitled to an evidentiary hearing on his claim where he alleges facts that, if true, would entitle him to relief. A hearing, though, is not required when the files and records of the case conclusively show that the prisoner is entitled to no relief. The district court also has the authority to order discovery or something short of a full-blown hearing to allow an adequate inquiry into a petitioner's claim, or to help the court determine whether a full hearing is necessary.

...

We note that a full evidentiary hearing is not the only option available to the district court to resolve the essential disputed facts[.] ... Rule 6 of the Rules Governing Section 2255 Proceedings provides that a judge may authorize further discovery upon request; Rule 7 authorizes the judge to expand the record without request. Either option provides a relatively straightforward way to resolve the crucial issues of fact that underpin Lafuente's claim.

Lafuente v. U.S. , 617 F.3d 944, 946–47 (7th Cir. 2010) (citations and quotations omitted). These holdings show that the Court is entitled to order that more evidence be produced, not only upon a party's request, but on its own accord.

The petitioner argues that Attorney Sirkin's affidavit would be premature. He insists that the Court is bound to give him an evidentiary hearing because he alleges facts sufficient to state claims of ineffectiveness. Essentially, he believes that in deciding whether to hold an evidentiary hearing, the Court is constrained to simply conduct another screening in disguise. This limitation cannot be real, else the above-cited Rules Governing Section Section 2255 Proceedings, and the holdings from Lafuente , would be superfluous. This is also seen in the petitioner's more recent citations. Torres–Chavez holds that if " ‘the files and records of the case conclusively show that the prisoner is entitled to no relief,’ or if the allegations are too vague and conclusory, then an evidentiary hearing is unnecessary. 28 U.S.C. § 2255(b) ; see Ryan v. United States , 657 F.3d 604, 606–07 (7th Cir. 2011)." Torres–Chavez v. U.S. , 828 F.3d 582, 586 (7th Cir. 2016). Like Lafuente , there would be no reason for Torres–Chavez to include the first clause of the cited sentence, discussing an evidentiary record, if only the second clause, addressing allegations, was really necessary.

The Court has also limited the required disclosure to those topics raised by the petitioner himself in his motion. See (Docket # 1 and # 1–2); U.S. v. Pinson , 584 F.3d 972, 978–79 (10th Cir. 2009). The petitioner fails to point out any particular problem with the terms of the affidavit the Court has ordered him to procure. Inst...