Lagar, Humberto v. Tegels, Lizzie et al

Filing 20

ORDER that petitioner Humberto Lagar is directed to show cause, if any, by responding in writing within thirty (30) days of the date of this order why his petition should not be dismissed as barred by the doctrine of procedural default. Signed by District Judge William M. Conley on 3/26/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
HUMBERTO LAGAR,
Petitioner,

OPINION AND ORDER
13-cv-489-wmc

v.

LIZZIE TEGELS, Warden,
Jackson Correctional Institution,
Respondent.

Petitioner Humberto Lagar has filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, challenging one or more adverse decisions by the Wisconsin Parole
Commission. He has filed more than one amendment or supplement to his petition. He
has also filed a motion for a preliminary injunction, which the court construes as a brief in
support of his request for relief under § 2254.

The petition is before the court for

preliminary review pursuant to Rule 4 of the Rules Governing Section 2254 Cases. For
reasons set forth below, the court concludes that the petition must be dismissed for
reasons set forth below.
FACTS
Lagar was convicted of possession with intent to deliver cocaine within a school
zone in Milwaukee County Case No. 95CR2577.

On February 16, 1996, the circuit

court sentenced him as a repeat offender to serve twenty years in prison. He was given a
mandatory release date of October 8, 2009, and a discharge date of November 29, 2015.
Lagar does not challenge the validity of his underlying conviction or sentence.
Instead, he challenges an adverse decision by the Parole Commission, which denied him
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"presumptive" mandatory release that was scheduled for October 8, 2009.

Exhibits

provided by Lagar reflect that the Parole Commission denied him release because: (I) he
refused to participate in an Alcohol and Other Drug Abuse ("AODA") treatment program
as recommended by prison social workers; and (2) for protection of the public.

For

these same reasons, the Parole Commission denied him release in two subsequent
decisions on August IO, 2010, and on August 14, 2012.
Lagar maintains that he does not need drug or alcohol treatment and that by
repeatedly withholding his mandatory release he has been subjected to "involuntary
commitment." Construed generously, petitioner claims that the Parole Commission has
denied him early release from prison in violation of his right to due process. Based on
the allegations and the exhibits that Lagar provides in this case, he has not exhausted
available state court remedies with respect to his claims. As a result, it appears further
that review is barred by the doctrine of procedural default for reasons outlined briefly
below.

OPINION
I.

Exhaustion of State Remedies
The federal habeas corpus statutes require a petitioner to exhaust all remedies that

are "available in the courts of the State" before seeking relief in federal court. 28 U.S.C.
§ 2254(b)( l)(A).

When a state prisoner alleges that his continued confinement violates

federal law, the doctrine of exhaustion ensures that state courts have "the first

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opportunity to review this claim and provide any necessary relief." 0 Sullivan v. Boerckel,
526 U.S. 838, 844 (1999).

To satisfy the requirement found in § 2254(b), "a state

prisoner must present his claims to a state supreme court in a petition for discretionary
review in order to satisfy the exhaustion requirement." Id. at 839-40. Thus, in order to
exhaust remedies in Wisconsin, habeas petitioners must present their claims for
discretionary review by the Wisconsin Supreme Court. See Moore v. Casperson, 345 F.3d
4 7 4, 485-86 (7th Cir. 2003).
In Wisconsin, a prisoner may appeal a parole commission's adverse decision "only
by the common law writ of certiorari." Wis. Stat.§ 302.ll(lg)(3)(d). In this instance,
Lagar did not file a common law writ of certiorari in circuit court to challenge any of the
adverse decisions referenced in his pleadings. Instead, he filed a petition for a writ of
habeas corpus, which the circuit court dismissed on May 7, 2013. See Lagar v. Tegels,
Case No. 2013CV1572. Lagar filed a notice of appeal, but voluntarily dismissed that
proceeding in June 2013. See Lagar v. Tegels, Appeal No. 2013AP1182.
Lagar filed another petition for a writ of habeas corpus seeking relief from the
Parole Commission's adverse decision pursuant to Wis. Stat. § 782.01(2). See Lagar v.

Tegels, et al., Jackson County Case No. 2013CV108.

That case was transferred to

Milwaukee County, where it was dismissed on August 22, 2013. See Lagar v. Tegels, et al.,
Case No. 2013CV6282. Lagar did not file an appeal from that decision.
Noting that his habeas corpus petitions have been dismissed in state court, Lagar
appears to claim that exhaustion is futile. However, a petitioner "cannot simply opt out

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of the state review process because he is tired of it or frustrated by the results he is
getting." Cawlry v. DeTel/a, 71F.3d691, 695 (7th Cir. 1995). If the petitioner misses the
opportunity to properly present a claim to the state courts, then federal review of the
claim is forfeited. See Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir. 2007). In that
regard, when a prisoner fails to exhaust remedies and it is too late for him to do so, federal
review is barred by the doctrine of procedural default. See Perruquet v. Brilry, 390 F.3d
505, 514 (7th Cir. 2004).

II.

Doctrine of Procedural Default
Where a procedural default has occurred, federal habeas corpus review is available

only if the petitioner can demonstrate: ( 1) "cause for the default and actual prejudice as a
result of the alleged violation of federal law," or (2) that "failure to consider the claims
will result in a fundamental miscarriage of justice." Coleman v. 17wmpson, 501 U.S. 722,
750 (1991); Steward v. Gilmore, 80 F.3d 1205, 1211-12 (7th Cir. 1996).

Cause to

overcome a procedural default requires a showing "that some objective factor" that
prevented compliance with the procedural rule. Coleman, 501 U.S. at 753 (citing Murray
v. Carrier, 477 U.S. 478, 488 (1986)).

To show prejudice, a petitioner must present

evidence that the alleged violations "worked to his actual and substantial disadvantage,"
which infected his entire proceeding with "error of constitutional dimensions." Perruquet
v. Brilry, 390 F.3d 505, 515 (7th Cir. 2004) (citation omitted).

Because procedural default is an affirmative defense, Lagar was not required to

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•

show cause and prejudice or actual innocence in his petition. PeJTUquet, 390 F.3d at 515.
Nevertheless, a court may raise an affirmative defense before requiring the respondent to
answer if "it is so plain from the language of the complaint and other documents in the
court's files that it renders the suit frivolous." Gleash v. Yuswak, 308 F.3d 758, 760-61
(7th Cir. 2002) ("Under the circumstances there was no point to serving the defendants
with process, forcing them to engage counsel, and then waiting for the inevitable motion
to dismiss.").

In light of the petitioner's apparent failure to exhaust administrative

remedies in compliance with state law, a motion to dismiss the petition as procedurally
barred is "inevitable" in this case. Therefore, Lagar will be allowed an opportunity to
overcome his default by supplementing his petition to explain with more detail regarding
( 1) what cause he may have for his failure to properly present his defaulted claims to the
Wisconsin Supreme Court through a common law writ of certiorari pursuant to Wis. Stat.
§ 302.ll(lg)(3)(d); and (2) what prejudice he suffered as a result of his failure to raise

these claims properly.
Lagar should label his response as a "supplement" to his petition for a writ of
habeas corpus under 28 U.S.C. § 2254, and he must make sure to declare that any
statements he makes in the supplement are made under penalty of perjury. 28 U.S.C.
§ 2242 (petition must be "signed and verified" by petitioner).

ORDER
IT IS ORDERED THAT:
1. Petitioner Humberto Lagar is directed to show cause, if any, by responding in

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writing within thirty (30) days of the date of this order why his petition should not be
dismissed as barred by the doctrine of procedural default.
2. Petitioner is advised that, if he does not respond to this order as directed, then
this case may be dismissed for want of prosecution without further notice under Fed. R.
Civ. P. 4l(b).
Entered this 26th day of March, 2014.

Distri

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tJ udge