The opinion of the court was delivered by: Joe Billy McDade United States District Judge
Petitioner is before this Court on a Motion to Vacate, Set Aside, or Correct Sentence, filed under 28 U.S.C. § 2255. [Docs. 1, 4] On February 11, 2008, Petitioner filed a Motion for Discovery and Evidentiary Hearing, specifying a request for trial transcripts, and including a request for appointment of counsel. [Doc. 6] On February 28, 2008, Petitioner moved for release pending determination of the section 2255 motion. [Doc. 9] On April 7, 2008, Petitioner filed another similar motion for discovery and for an evidentiary hearing, specifying certain written interrogatories to his trial attorney and government counsel. On June 4, 2008, Petitioner moved for rulings on his prior motions. [Doc. 12] And on July 31, 2008, Petitioner moved for summary judgment. [Doc. 13]
On August 14, 2008, the Court GRANTED Petitioner's motions for an evidentiary hearing and appointment of counsel. [Doc. 14] The Court would now rule that Petitioner's motion for discovery [Doc. 6] is DENIED WITHOUT PREJUDICE. Additionally, Petitioner's motion for release [Doc. 9] and motion for summary judgment [Doc. 13] are DENIED. Petitioner's discovery motion of April 7, 2008 [Doc. 11] is STRICKEN as duplicative, and his motion of June 4, 2008 to compel discovery [Doc. 12] is STRICKEN as MOOT.
The Court has appointed counsel to Petitioner. [Doc. 16] With the assistance of counsel now available to him, Petitioner is granted leave until September 19, 2008 to file or refile appropriate motions for discovery as provided in Rule 6 of the Rules Governing Section 2255 Proceedings in the United States District Courts. If Petitioner requests records of his underlying criminal case, he must identify with specificity what portion of the record is requested and explain why such portion is relevant to his section 2255 motion.
Petitioner has filed a motion requesting release from incarceration pending a ruling on his section 2255 motion, pursuant to 18 U.S.C. § 3143(b)(B)(iv). [Doc. 9] That motion is DENIED. The statute that Petitioner references gives a judicial officer limited discretion to decide whether or not to detain a convicted defendant who has appealed or petitioned for a writ of certiorari challenging his conviction. The statute does not apply to a person seeking post-conviction relief under 28 U.S.C. §2255. Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985).
3. Motion for Summary Judgment
Petitioner has filed a motion for summary judgment [Doc. 13] on his section 2255 motion. That motion is DENIED. Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admission on file, together with affidavits, if any," show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); see also Tyler v. McCaughtry, 293 F. Supp.2d 920, 923 (E.D. Wis. 2003) (applying Fed. R. Civ. P. 56 standard to motion for summary judgment on federal habeas petition). Issues of material fact are present here, precluding summary judgment. Accordingly, the Court has ordered an evidentiary hearing, set for October 17, 2008.
4. Clarification regarding Evidentiary Hearing
As a point of clarification to the Court's Order of August 14, 2008, the evidentiary hearing will be limited to evidence relating to Petitioner's ineffective assistance of counsel claims, including whether Petitioner was informed of a proffered plea agreement and whether Petitioner's trial counsel considered and had a reasonable basis for deciding not to pursue a motion to suppress.
IT IS THEREFORE ORDERED that Petitioner's motion for discovery [Doc. 6] is DENIED WITHOUT PREJUDICE. Petitioner is granted leave until September 19, 2008 to file or refile appropriate motions for discovery. Additionally, Petitioner's motion for ...