United States District Court, E.D. Wisconsin
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (DOC.
14), GRANTING MOTION TO DISMISS (DOC. 11), AND DISMISSING
CLEVERT, JR. U.S. DISTRICT JUDGE
Jago petitions for a writ of habeas corpus regarding his 2010
conviction and forty-year sentence on four counts of
first-degree sexual assault with a dangerous weapon and one
count of false imprisonment. Jago was convicted in LaCrosse
County Circuit Court and sentenced to twenty-two years of
initial confinement and eighteen years of extended
supervision. (Doc. 1 Ex. 1 at 56 of 99.) He remains confined
within this district at the Dodge Correctional Institution.
asserts that he appealed his case to the Wisconsin Court of
Appeals and the judgment against him was affirmed; he then
unsuccessfully sought review in the Supreme Court of
Wisconsin. (Doc. 1 at 3.) Respondent, Marc Clements, concurs.
(See Doc. 12 at 1-2, Exs. A, B.)
offers eighteen grounds for relief, seventeen of which he
admits (and Clements agrees) were not raised in the state
courts. The sole ground that was presented to the state
courts was that trial counsel failed to file a pretrial
motion in limine to exclude other-acts evidence and was
thereby ineffective. Sixteen unexhausted grounds for relief
concern alleged errors by trial counsel that allegedly
resulted in ineffective assistance. The other unexhausted
ground charges that the trial court did not allow trial
counsel adequate time to prepare and intimidated Jago such
that he could not request new counsel.
this court screened the petition, Jago asked that counsel be
appointed. Shortly thereafter, Clements moved to dismiss the
petition for failure to exhaust or, alternatively, for
procedural default. Although Clements titled the motion as
one to dismiss, he attached various documents to his motion
and provided Jago with the text of pertinent portions of
Fed.R.Civ.P. 56 and Civil L.R. 7 and 56.
the court denied the request for appointment of counsel
without prejudice because Jago failed to establish that he
had looked for counsel before filing the motion. The
court's order indicated that Jago needed to contact at
least five attorneys before filing a new motion. Jago was
given several months to find counsel and to respond to the
motion to dismiss.
September 15, 2016, Jago filed another motion for appointment
of counsel but did not respond to the merits of the motion to
dismiss. Although he titled the motion as a request for
extension of time, its contents do not ask for any more time
to respond to the motion to dismiss.
that background, a preliminary issue is what should be done
with the documents attached to Clements's dismissal
motion, which consist of state-court decisions and briefs or
petitions filed by the parties in Jago's state-court
proceedings. Ordinarily, motions to dismiss are based on the
allegations in the complaint or petition. See Fed.
R. Civ. P. 12(b)(6), (d). If matters outside those pleadings
are presented to and not excluded by the court, the motion
generally must be treated as one for summary judgment under
Fed.R.Civ.P. 56 and the petitioner in this case, Jago, must
be notified of the court's intention to use those
materials and be given an opportunity to present any material
that he believes pertinent. Fed.R.Civ.P. 12(d).
are exceptions, however. Documents attached to a complaint
are part of the pleadings for purposes of a Rule 12(b)(6)
motion to dismiss. Fed.R.Civ.P. 10(c); Tierney v.
Vahle, 304 F.3d 734, 738 (7th Cir. 2002). Most important
to the issue at hand is the Wisconsin Court of Appeals
appellate decision in Jago's case. Jago submitted that
decision with his petition and Clements attached a second
copy to the motion to dismiss. Consequently, it will be
considered. Further, the court would have considered the
appeals-court decision even if Jago had not included it.
Documents submitted with a motion to dismiss may be
considered part of the pleadings if they are referred to in
the plaintiff's complaint and are central to a claim.
188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735
(7th Cir. 2002); see also Tierney, 304 F.3d at 738.
This rule prevents parties from surviving a motion to dismiss
by artful pleading or by failing to attach relevant documents
to the complaint. 188 LLC, 300 F.3d at 735.
Moreover, this district's habeas form requires that
relevant state-court decisions be attached (see Doc.
1 at 3-4) because they are central to the claims.
the court may take judicial notice of facts that are not
subject to reasonable dispute because they are
“generally known within the trial court's
territorial jurisdiction” or “can be accurately
and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed.R.Evid. 201(b). Judicial
notice “is an adjudicative device that substitutes the
acceptance of a universal truth for the conventional method
of introducing evidence.” Gen. Elec. Capital Corp.
v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir.
1997). Here, the court will take judicial notice of the other
documents attached to the motion to dismiss, which are
decisions, briefs and petitions from the public state-court
the court turns to Jago's motion for appointment of
counsel. As Jago proceeds pro se, the court will consider the
documents attached to his motion for appointment of counsel.
Criminal Justice Act, 18 U.S.C. § 3006A(a)(2)(B),
permits the court to appoint counsel for an indigent
petitioner seeking habeas relief under 28 U.S.C. § 2254.
To do so, the court must find that the appointment of counsel
would serve “the interests of justice” and that
the petitioner is “financially eligible.” 18
U.S.C. § 3006A(a)(2). “Due process does not
require appointment of counsel for indigent prisoners
pursuing . . . federal habeas relief.” Pruitt v.
Mote, 503 F.3d 647, 657 (7th Cir. 2007). Indigent civil
litigants have no constitutional or statutory right to be
represented by counsel in federal court. Id. at 649.
Appointment of counsel for habeas petitioners is within the
district court's discretion and is governed by standards
similar to those followed in civil cases with plaintiffs
proceeding in forma pauperis. Jackson v. County of
McLean, 953 F.2d 1070, 1071 (7th Cir. 1992); Wilson
v. Duckworth, 716 F.2d 415, 418 (7th Cir. 1983). The
decision is a discretionary one. Pruitt, 503 F.3d at
653; Jackson, 953 F.2d at 1071. And a threshold
question is whether the litigant has attempted to obtain
counsel himself or has been prevented from doing so.
Pruitt, 503 F.3d at 654-55; Jackson, 953
F.2d at 1072-73.
petitioner has established that his reasonable efforts to
obtain counsel were unsuccessful, the court conducts “a
two-fold inquiry into both the difficulty of the
plaintiff's claims and the plaintiff's competence to
litigate those claims himself.” Pruitt, 503
F.3d at 655. The inquiries are intertwined. “[T]he
question is whether the difficulty of the case-factually and
legally-exceeds the particular [party's] capacity as a
layperson to coherently present it to the judge or jury
himself.” Id. Whether a party appears
competent to litigate his own claims, given their difficulty,
includes consideration of all parts of litigation, including
evidence gathering and responding to motions. Id.
Regarding the party's ability to litigate the case, the
court should review “whatever relevant evidence is
available on the question, ” including pleadings and
communications from the party. Id.
has provided sufficient evidence of seeking counsel on his
own. However, the court is not persuaded that this case
exceeds Jago's capacity to coherently present it.
Jago's submissions exhibit logic, they are easily
understood, and he has shown his ability to focus on
pertinent issues. For example, he recognized that he did not
exhaust most of his grounds for relief and asked the court
for a stay (as discussed below). Moreover, the preliminary
issues to be addressed regarding his petition-exhaustion and
procedural default-are not complex. Jago points to his need
to obtain evidence regarding his wife's medical records
and prior bad acts. But at present stage, this case involves
the procedural posture of seventeen of Jago's eighteen
claims and why he did not raise them in the state courts.
Further, regarding the sole exhausted claim, the Wisconsin
Court of Appeals decided the claim on the merits such that
this court is limited to the record. Cullen v.
Pinholster, 563 U.S. 170, 180-82 (2011) . Thus, no
discovery or hearing is permitted. Id. In sum, based
upon this review of the Pruitt factors as they apply
to Jago's claims, the court does not believe the
interests of justice or fundamental fairness require
appointment of counsel. The motion will be denied.
application for writ of habeas corpus from a person in state
custody shall not be granted unless it appears that (a) the
applicant has exhausted state remedies, or (b) there is no
available state corrective process, or (c) circumstances
exist that render such process ineffective to protect the
applicant's rights. 28 U.S.C. § 2254(b)(1). To
exhaust a claim, the petitioner must provide the state courts
with a full and fair opportunity to review his claims.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). This requires the petitioner to appeal adverse
state-court decisions to the state supreme court when doing
so is part of the ordinary appellate review procedure in that
state. Id. at 847.
specific claim is not exhausted if the petitioner “has
the right under the law of the State to raise, by any
available procedure, the question presented.” 28 U.S.C.
§ 2254(c). In State v. Escalona-Naranjo, 185
Wis.2d 168, 181 (1994), the Supreme Court of Wisconsin held
that postconviction proceedings under Wis.Stat. § 974.06
cannot be used to review issues that were or could have been