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Ziegler v. Schwochert

United States District Court, E.D. Wisconsin

February 17, 2016



HON. PAMELA PEPPER United States District Judge

The petitioner filed his petition for habeas relief on May 31, 2013- almost two years ago. Dkt. No. 1. The same day, he filed a motion asking the court to appoint a lawyer to represent him, and asking the court to stay the federal habeas proceedings while he finished exhausting claims in state court. Dkt. No. 3. The respondent did not oppose the petitioner’s request for a stay, Dkt. No. 12, and so on July 12, 2013, Judge Adelman (who was, at that time, assigned to preside over the case) issued the stay, Dkt. No. 13. Judge Adelman ordered that every ninety (90) days, the petitioner had to update the court on what was happening with his state court proceedings, and that he also must notify the court within thirty (30) days after he’d exhausted all his remedies in state court. Id.

A year and a half later, the case was reassigned to me, Judge Pepper. During that year and a half, the petitioner had filed numerous 90-day updates, but continued to indicate that his state case still had not been resolved. I reviewed all of the updates the petitioner had filed, and concluded that the petitioner had, in fact, exhausted the claims he was trying to bring in the federal habeas case. Accordingly, I vacated the stay, and screened the petition. Dkt. No. 41. I allowed the petitioner to proceed on a Sixth Amendment ineffective assistance of counsel claim, and set a briefing schedule. Id.

The petitioner filed a motion asking me to reinstate the stay. Dkt. No. 43. He argued that he still had state habeas claims wending their way through the state court system. He asked me to appoint counsel to assist him in conducting numerous tasks, including helping him to organize his very large case file, helping him separate out the issues/claims he could present (including, he argued, some claims that never had been presented in federal court before), helping him get sealed juvenile records “relevant to [his] state and federal actions, ” obtaining CDs and DVDs in his state court case file, obtaining CDs and DVDs in the possession of the state, helping him gain access to discovery materials, and helping him to cut down the size of his briefs. Id. In several places, the petitioner argued that he had so many issues floating around in his head that he was overwhelmed, and needed to narrow down the issues. For these reasons, he asked me to appoint counsel to represent him. Id.

I granted the petitioner’s request to reconsider my decision vacating the stay. Dkt. No. 44. I noted in the order that the petitioner’s pleadings were chock-full of questions about procedure, but that I could not give him legal advice. Id. at 3. I also explained to the petitioner that the law did not allow me to consider a habeas petition that contained both exhausted and unexhausted claims. Id. at 4. I concluded, “At this point, the court cannot tell exactly what claims the petitioner has yet to exhaust, or whether there was good cause for his failure to exhaust his remedies as to those claims in the two years that this case has been stayed.” I stated that I would “give the petitioner one more chance to make clear to the court which claims he believes he has not exhausted, and to provide good cause for failure to exhaust those claims.” Id. at 5-6.

I also granted the petitioner’s request that I appoint counsel to assist him. Id. at 8. Given the fact, however, that appointment of counsel in habeas cases is very rare, that there are limited resources for appointing counsel in civil cases, and that attorneys who accept such appointments often represent numerous other clients, I tried to make clear that I was appointing counsel for a very limited purpose. I stated,

The court notes, however, that it grants the appointment of counsel only for a limited purpose. The court asks that counsel assist the petitioner in amending his petition to include a succinct statement of the claims he intends to bring in his federal habeas case, a statement of whether he has exhausted those claims in federal court, and if he has not, an explanation of good cause for his failure. The court also asks counsel to assist the petitioner in deciding-and stating-how he would like to proceed (does he want the court to continue the stay, to lift the stay and proceed on the exhausted claims, to dismiss the petition, etc.).


Magistrate Judge Duffin appointed Attorney Matthew S. Pinix to represent the petitioner for this limited purpose. Dkt. No. 46. After Attorney Pinix was appointed, I issued an order requiring the petitioner to inform me no later than December 21, 2015 of how he would like to proceed. Dkt. No. 47.

On December 18, 2015-a couple of days before the deadline for the petitioner to tell me how he wanted to proceed-Attorney Pinix filed a letter, asking me to clarify the purpose of his appointment. Dkt. No. 49. I responded by issuing an order attempting, again, to explain the limited scope of the representation. Dkt. No. 50. I thanked Attorney Pinix for agreeing to help the petitioner. Id. at 4-5. I told Attorney Pinix that he was not appointed to edit the petitioner’s grammar. Id. at 5. I also told him that he did not have to assess the petitioner’s ineffective assistance of counsel claim (which I’d already decided that he had exhausted, and could proceed on) to see whether it had merit-that is my job. Id. at 5-6. I told Mr. Pinix that the concern that had prompted me to appoint counsel was my concern “that the petitioner did not understand what it meant to have ‘exhausted’ remedies, and did not understand that in our circuit, a petitioner can’t bring both exhausted and unexhausted claims in one habeas petition.” Id. at 6.

I went on to explain that “[t]he fact that the petitioner is seeking, over two years after he filed his habeas petition, to file a state habeas petition on the ineffective assistance of his appellate counsel, left me wondering whether he misunderstood what was required in the way of exhaustion of claims.” Id. at 7. I also explained that I was concerned that the petitioner was attempting to raise new claims that he’d never raised in any state court proceeding. Id. I concluded with the following:

. . . I had hoped that Mr. Pinix might advise the petitioner on what “exhaustion of remedies” means. I had hoped he might advise the petitioner on the appropriateness of adding “new” claims to a habeas petition, given the requirements of AEDPA and the exhaustion requirement. I had hoped he might advise the petitioner on the law regarding petitions that included both exhausted and unexhausted claims, and the options the Seventh Circuit has given petitioners who have both exhausted and unexhausted claims, so that the petitioner might decide among the following options:
(a) reiterating his request that I stay the federal habeas proceeding to let him exhaust state remedies (which, from a legal standpoint, requires some consideration of whether the petitioner appears to have any unexhausted remedies; that would entail appointed counsel looking at the documents the petitioner provided plus anything counsel can tell from ...

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