Jackson v. Baenen

Filing 13

ORDER signed by Judge Lynn Adelman on 11/29/12 denying 9 Motion for Order. Further ordering that the parties abide by the briefing schedule set forth in the order. (cc: all counsel, via USPS to petitioner) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EARNEST JEAN JACKSON,
Petitioner,
v.

Case No. 12-CV-00554

MICHAEL BAENEN, Warden,
Green Bay Correctional Institution,
Respondent.

DECISION AND ORDER
Pro se petitioner Earnest Jackson brought this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, asserting that his state court conviction and sentence were
imposed in violation of the Constitution. Petitioner was convicted in Milwaukee County
Circuit Court of first-degree intentional homicide and mutilating a corpse, both as a party
to a crime on October 18, 2007. He was sentenced to two concurrent terms of life
imprisonment without extended supervision and a bifurcated term of five years confinement
and five years extended supervision. Petitioner is currently incarcerated at Green Bay
Correctional Institution. Before me now is petitioner’s motion to stay the case while he
returns to state court to exhaust one of his claims.
Petitioner asks for the opportunity to return to state court to exhaust his claim of
ineffective assistance by postconviction counsel.1 After his conviction, petitioner was

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At one point in his opening brief, petitioner implies that he wishes to exhaust
several claims, but the only claim he discusses is his claim of ineffective assistance of
postconviction counsel. Therefore, I treat his motion as only addressing this claim.

appointed a new attorney to handle postconviction relief. This attorney filed a
postconviction motion alleging that trial counsel had provided ineffective assistance in
several ways. The motion was denied, and the same attorney then represented petitioner
on direct appeal. Petitioner claims that his postconviction attorney was ineffective because
he failed to include certain arguments related to petitioner’s right to be free from double
jeopardy in the postconviction motion. As a result, these arguments were not preserved for
appeal.
After petitioner lost on appeal, he filed a pro se motion in the trial court collaterally
attacking his conviction under Wis. Stat. § 974.06. He should have included his claim of
ineffective assistance of postconviction counsel in that motion, but he did not because he
believed he needed to wait and raise this argument as part of a petition for a writ of habeas
corpus before the Wisconsin Court of Appeals pursuant to State v. Knight, 168 Wis. 2d 509
(S. Ct. 1992). When he brought his subsequent Knight petition, the court of appeals
rejected it because Wisconsin law requires a defendant to present a claim of ineffective
assistance of postconviction counsel to the trial court in the first instance. See State ex rel.
Rothering v. McCaughtry, 205 Wis.2d 675 (Ct. App. 1996). A Knight petition is only
appropriate for claims of ineffective assistance by appellate counsel, and the court of
appeals found that petitioner’s appellate counsel was effective because he raised all of the
arguments that had been preserved for appeal. (Answer Ex. Z, ECF No. 8-13.) After his
Knight petition was rejected, petitioner believed he had exhausted all of his claims and filed
this petition. It was not until after respondent answered the petition and expressed his
belief that it included unexhausted claims that petitioner moved to stay the petition.

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There are several problems with petitioner’s motion to stay the case. First, he has
already procedurally defaulted on the claim he wishes to exhaust. Procedural default
occurs “when a habeas petitioner has failed to fairly present to the state courts the claim
on which he seeks relief in federal court and the opportunity to raise that claim in state
court has passed.” Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). Petitioner asks
for leave to return to state court so he can file a second motion under § 974.06, but
Wisconsin law prohibits a defendant from bringing a second § 974.06 motion unless he
can show a “sufficient reason” for not raising all of his claims in his first motion. Wis. Stat.
§ 974.06(4); see also State v. Escalona-Naranjo, 185 Wis. 2d 168, 185 (S. Ct. 1994)
(interpreting the statute). Petitioner knew he had a claim for ineffective assistance of
postconviction counsel when he brought his first § 974.06 motion, but did not include it
because he did not understand Wisconsin’s rules for postconviction proceedings. No
Wisconsin court has recognized ignorance of the law as a “sufficient reason” under
§ 974.06(4). See State v. Maddox, No. 2011AP1923, 2012 WL 3930372, at *2 (Wis. Ct.
App. Sept. 11, 2012) (unpublished opinion) (“Unfortunately for [defendant], ignorance of
the law is not a sufficient excuse to challenge a judgment of conviction a third time.”); State
v. Kidd, 332 Wis. 2d 316 (Ct. App. 2011) (unpublished opinion) (same); see also State v.
Jensen, 272 Wis.2d 707, 729 (Ct. App. 2004) (noting that even pro se defendants are
presumed to know the law). Therefore, he cannot bring a second § 974.06 motion.
Secondly, even if petitioner still had an avenue for exhausting his claim in state
court, I would not stay this case because he has not shown “good cause” for failing to
exhaust the claim before filing this petition. See Rhines v. Weber, 544 U.S. 269, 277

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(2005). The Supreme Court has indicated that the standard for staying a petition so a
petitioner can exhaust a claim is more lenient than the standard for excusing a petitioner’s
procedural default. Compare Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (“A
petitioner’s reasonable confusion about whether a state filing would be timely will ordinarily
constitute ‘good cause’ [to hold a petition in abeyance].”), with Coleman v. Thompson, 501
U.S. 722, 753 (1991) (holding that procedural default can only be excused if the default
was caused by “something external to the petitioner, something that cannot be fairly
attributable to him”); see also Rhines, 544 U.S. at 279 (Stevens, J., concurring) (noting that
“‘good cause’ for failing to exhaust state remedies more promptly . . . is not intended to
impose the sort of strict and inflexible requirement that would ‘trap the unwary pro se
prisoner’” (quoting Rose v. Lundy, 455 U.S. 509, 520 (1982)). Nonetheless, I find that
petitioner’s confusion about Wisconsin law in this case is not sufficient to establish good
cause to stay the petition.
Unlike the scenario described in Pace, petitioner was not reasonably confused
about the law. The Wisconsin Supreme Court’s holding in Rothering was clear. The court
recognized that the same attorney often serves as both postconviction and appellate
counsel, but held it is important to distinguish between the two roles. Rothering, 205
Wis.2d at 684 n.4. A claim of ineffective assistance of postconviction counsel must be
raised in the trial court because that is where the alleged errors took place. Id. at 681.
Thus, the only reason petitioner failed to raise his claim in his first § 974.06 motion was
that he was ignorant of the law, which I find is insufficient to establish good cause to stay
the petition. See Josselyn v. Dennehy, 475 F.3d 1, 5 (1st Cir. 2007) (“Ignorance of the law

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does not constitute good cause.”). Allowing a petitioner to stay a petition by claiming
ignorance about the law would eviscerate the requirement of good cause set out in Rhines.
Virtually any prisoner could prove that his or her failure to exhaust was due to ignorance
of the law. See Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (noting that
staying habeas petitions based on a petitioner’s lack of knowledge that a claim was not
exhausted “would render stay-and-abey orders routine” and violate Rhines’ instruction that
stays should only be granted in “limited circumstances”).
Finally, the motion to stay the case must be denied because the petition filed with
this court does not actually include the claim petitioner seeks to exhaust and he has not
moved to amend his petition. The petition states only that petitioner’s appellate counsel
was ineffective, not that his postconviction counsel was ineffective. Thus, there would be
no reason to stay the case to allow petitioner to exhaust this claim.
THEREFORE, IT IS ORDERED that petitioner’s motion to hold the petition in
abeyance to allow for the exhaustion of an additional issue [DOCKET #9] is DENIED.
IT IS FURTHER ORDERED that the parties shall abide by the following schedule
regarding the filing of briefs on the merits of petitioner’s claims: 1) petitioner shall have
forty-five (45) days from the date of if this order within which to file his brief in support of
his petition; 2) respondent shall have forty-five (45) days following the filing of petitioner’s
initial brief within which to file a brief in opposition; and 3) petitioner shall have thirty (30)
days following the filing of respondent’s opposition brief within which to file a reply brief,
if any.

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Pursuant to Civil L.R. 7(f), the following page limitations apply: briefs in support of
or in opposition to the habeas petition must not exceed thirty pages and reply briefs must
not exceed fifteen pages, not counting any statements of facts, exhibits, and affidavits.
Dated at Milwaukee, Wisconsin, this 29th day of November 2012.

s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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