Powers v. Thurmer

Filing 108

ORDER signed by Magistrate Judge William E Duffin. IT IS THEREFORE ORDERED that this action is stayed and Powers's petition is held in abeyance pending the exhaustion of his state court remedies. Within 45 days of the date of this order Powers must initiate proceedings in state court to exhaust his state court remedies. (cc: all counsel)(asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JACOB ALAN POWERS,
Petitioner,
V.

Case No. 10-CV-1127

BRIAN FOSTER,
Respondent.
ORDER
Jacob Alan Powers was convicted following a jury trial in Fond du Lac County
Circuit Court on August 8, 2006, of two counts of second degree sexual assault of a child
and one count of child enticement. (ECF No. 95 at 2.) After unsuccessfully seeking relief
in the state courts, Powers filed a petition for a writ of habeas corpus in federal court on
December 14, 2010. (ECF No. 1.) The procedural history of this action has been
recounted in prior decisions in this case. (ECF No. 31, 51, 67); see also Powers v. Pollard,
2011 U.S. Dist. LEXIS 135873 (E.D. Wis. Nov. 23, 2011). But some limited discussion is
required to explain this court’s present decision.
Powers’s petition began with five claims (ECF No. 1), four of which survived
initial screening by Judge Clevert (ECF No. 12). The respondent moved to dismiss the

petition due to Powers’s failure to exhaust his state court remedies. (ECF No. 21.)
Powers asked the court to stay the proceedings so he could return to state court to
exhaust his remedies. (ECF No. 24.) Judge Gorence, to whom the case was by then
assigned, found that Powers had procedurally defaulted each of the claims raised in his
petition “by failing to fairly present such claims to the required levels of the state
judiciary in accordance with Wisconsin’s appeals procedures.” (ECF No. 31.) However,
she denied the respondent’s motion to dismiss and instead permitted Powers to attempt
to show that his procedural default should be excused. (ECF No. 31.) She also denied
Powers’s motion to stay the proceedings and to hold his petition in abeyance. (ECF No.
31 at 13-15.)
Judge Gorence subsequently appointed counsel to represent Powers. (ECF No.
38.) Now represented by counsel, Powers filed a brief arguing that his procedural
default should be excused because he demonstrated cause and prejudice. (ECF No. 44.)
In his brief, Powers essentially amended his petition, leading the respondent to
withdraw his motion to dismiss. (ECF No. 50.)
In answering the petition, however, the respondent raised a different procedural
defense – timeliness. (ECF No. 53.) At Powers’s request, the case proceeded first on the
issue of whether the statute of limitations should be equitably tolled. (ECF Nos. 56, 57,
58, 59.) Following briefing on that issue, Judge Gorence concluded that an evidentiary
hearing was necessary. (ECF No. 67.) The case was then reassigned to Judge Callahan,
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who scheduled the evidentiary hearing. (ECF No. 70.) The respondent subsequently
waived his statute of limitations defense (ECF No. 75), negating the need for the
evidentiary hearing.
The case, now reassigned to this court, finally appeared ready to be resolved on
its merits. But then Powers moved to amend his petition again. The respondent agreed
to the amendment, stating that it was “the most expeditious and fairest course for
completing the litigation.” (ECF No. 92 at 2.) Powers filed his amended petition adding
claims that his trial counsel was ineffective for failing to discuss Powers’s options to
plead guilty (ground three), to disclose the state’s plea offer (ground three), his right not
to testify (ground four) and to prepare him for cross-examination (ground four). (ECF
No. 95.) The respondent answered the amended petition, admitting that it was timely
(ECF No. 97, ¶ 2) but alleging that each claim was procedurally defaulted. (ECF No. 97,
¶¶ 3-7.) Briefing then proceeded based on the amended petition.
In his brief in opposition to the amended petition the respondent argued that
Powers had procedurally defaulted his new claims by failing to fairly present them to
the state courts. (ECF No. 101 at 8-17.) And thus the court was arguably back where it
was in October of 2014 when Judge Gorence found that an evidentiary hearing was
necessary to determine if cause and prejudice existed to excuse Powers’s procedural
default. (ECF No. 67.)

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But in reply, instead of arguing that his procedural default should be excused
because of his mental limitations, Powers sought to overcome his procedural default by
returning to state court to argue that his appellate counsel was ineffective for failing to
raise the ineffective assistance of trial counsel arguments Powers presents in grounds
three and four of his current petition. Thus, he asked the court to stay these proceedings
and hold the amended petition in abeyance. (ECF No. 31.) Because the request for stay
and abeyance was raised for the first time in reply, the court ordered further briefing on
the matter. (ECF No. 105.) It is that request that is currently before this court.
“[S]tay and abeyance should be available only in limited circumstances.” Rhines
v. Weber, 544 U.S. 269, 277 (2005). If employed too frequently the stay and abeyance
procedure would undermine Congress’s goal of encouraging finality of state court
judgments and streamlining federal habeas proceedings. Id. Thus, a stay is appropriate
only if the claim the petitioner seeks to present in the state court is not clearly meritless.
Id. Additionally, there must have been good cause for the petitioner’s failure to have
earlier sought relief in state court. Id.
With respect to good cause, roughly a year ago Powers’s current attorney
contacted the district attorney’s office that prosecuted Powers and asked whether it had
made any plea offers to Powers. (ECF Nos. 107-1, 107-2, 107-3.) A prosecutor reviewed
the office’s file and identified a letter indicating that a plea offer had been made. (ECF
Nos. 107-1, 107-2, 107-3.) Powers asserts that his trial counsel never informed him of the
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plea offer. Shortly after the discovery of the letter, Powers sought leave to amend his
petition. (ECF No. 90.)
It is true that the fact that the state had made a plea offer could have been
discovered earlier. The letter was apparently sitting in the prosecutor’s file available to
anyone who asked to see it. Indeed, Powers argues that his appellate lawyer should have
found the letter. That is one of the arguments he plans to raise in state court if his
motion for stay and abeyance is granted. “Attorney error that constitutes ineffective
assistance of counsel is cause to set aside a procedural default.” Smith v. Gaetz, 565 F.3d
346, 352 (7th Cir. 2009) (quoting Franklin v. Gilmore, 188 F.3d 877, 883 (7th Cir. 1999)).
Given Powers’s significant mental limitations and incarceration, it is unreasonable to
expect that he would have discovered the plea offer on his own. See Moore v. Knight, 368
F.3d 936, 939-940 (7th Cir. 2004).
Moreover, the court is unable to conclude that the claim is clearly meritless. See
Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012). Therefore, the court finds that it is
appropriate to stay these proceedings and hold the petition in abeyance to permit
Powers to exhaust his state court remedies.
The court shares the respondent’s frustration about the protracted nature of these
proceedings. But denying Powers the possibility of relief based upon an arbitrary clock
seems inappropriate. Powers recently discovered the basis for a potentially meritorious
claim. The late discovery of the claim establishes good cause for the failure to seek relief
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earlier. Thus, the court finds that Powers has shown that he should be permitted to
return to state court.
Finally, the court notes that its appointment of counsel to represent Powers is
limited to the present proceedings. It does not include state court proceedings. It is up
to the state court to decide whether it will appoint counsel to represent Powers in
proceedings in state court.
IT IS THEREFORE ORDERED that this action is stayed and Powers’s petition is
held in abeyance pending the exhaustion of his state court remedies. Within 45 days of
the date of this order Powers must initiate proceedings in state court to exhaust his state
court remedies. Not less than 45 days after the exhaustion of his state court remedies or
the expiration of time for seeking further review, Powers shall notify this court that the
state court proceedings are completed and that this court’s stay may be lifted. Failure to
do so may result in the court dismissing this action. The Clerk shall close this case for
statistical purposes.
Dated at Milwaukee, Wisconsin this 1st day of June, 2016.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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