Wednesday, 11 March 2015

Tenth Circuit Order... Hale V Oliver

                                        UNITED STATES COURT OF APPEALS
                                                   FOR THE TENTH CIRCUIT


Petitioner- Appellant


 J. OLIVER, Warden
 Respondent - Appellee.

                                          Before MATHESON Circuit Judge.

This matter is before the Court sua sponte for the appointment of counsel to represent Petitioner * Appellant and to order supplemental briefing from the parties.

As an initial matter, the Court grants Petitioner - Appellant's August 15, 2014
Motion for Leave to Proceed on Appeal Without Prepayment of Costs or Fees. pursuant to 18 U.S.C. $ 3006A(a) (2) (b) (2012), the Court finds that Petitioner - Appellant is otherwise eligible and the interests of justice require the appointment of counsel to assist with this appeal.

Accordingly, the court appoints the Federal Public Defender for the Districts of Colorado and Wyoming ('FPD") as appellate counsel for Mr. Hale .

Within 14 days of the date of this order, the FPD shall file an entry of appearance.

The Court has determined that oral argument and supplemental briefing would be beneficial in this case. In preparation for argument the parties should focus on the second issue in Mr. Hale's opening brief and should address the following questions in their supplemental briefing......

(1) Does the question regarding the availability of a 28 U.S.C. g 2241petition in Prost v, Anderson,636 F.3d 578, 584 (10th Cir. 20l1) "Whether a petitioner's argument challenging the legality of his detention could have been tested in an initial $ 2255 motion"--apply to a claim where the facts were not known to the prisoner at the time he filed his initial23 U.S.C. $ 2255 motion?

(2) If the Prost framework does not apply, what should the Court consider when determining whether such a claim may be brought via the savings clause and $2241?

(3) If Mr. Hale is barred from bringing his juror misconduct claim in a $ 2241
petition, does his due process challenge implicate the type of serious constitutional question that this court left open in Prost,636 F.3d at 593-94?

On or before April 1, 2015, counsel for Mr. Hale shall file a supplemental opening brief on the three issues set forth above. That brief shall comply with all applicable Federal Rules of Appellate Procedure and local rules.

The Respondent - Appellee shall file a supplemental response brief within 30 days of the filing of the Petitioner* Appellant's supplemental opening brief. Mr. Hale (through counsel) may file an optional reply within 14 days of the filing of Respondent - Appellee's supplemental response brief.

The record on appeal was filed on August 4,2O14. Newly-appointed counsel and counsel for the Respondent - Appellee may file such motions to supplement the record on appeal as may be needed. No appendix need be filed.

The Clerk shall send a copy of this order to all counsel currently of record to Matthew Hale, and to the FPD.

Entered for the Court,
by: Chris Wolpert
Chief Deputy Clerk

United States Court of Appeals
Tenth Circuit
February 20th 2015

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