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Jago v. Clements

United States District Court, E.D. Wisconsin

January 30, 2017

TIMOTHY A JAGO, Petitioner,
MARC CLEMENTS, Respondent.



         Timothy 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.

         Jago 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.)

         Jago 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.

         After 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.

         Subsequently, 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.

         On 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.

         Upon 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).

         There 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.

         Additionally, 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 files.

         Next, 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.

         The 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.

         Once a 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.

         Jago 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.

         An 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.

         A 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. ยง 974.06 cannot be used to review issues that were or could have been ...

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