Lagar, Humberto v. Tegels, Lizzie et al

Filing 56

Transmission of Notice of Appeal, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 54 Notice of Appeal. (Attachments: # 1 Order, 3/7/17, # 2 Order, 10/23/15, # 3 Judgment, # 4 Docket sheet) (jef),(ps)

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

OPINION AND ORDER

v.

13-cv-489-wmc

LIZZIE TEGELS, Warden,
Jackson Correctional Institution,
Respondent.

In July of 2013, petitioner Humberto Lagar filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, contending that the Parole Commission’s decision
to keep him incarcerated beyond his September 8, 2009, presumptive mandatory release
for refusing to participate in a Residential Alcohol and Other Drug Abuse (“AODA”)
treatment program violated his constitutional rights.

Lagar subsequently filed several

supplements and legal memorandums in support of his petition, as well as a motion for a
preliminary injunction (dkt. #31), which was previously denied (dkt. #32). The State
also filed an answer and brief in opposition in which it concedes that Lagar’s petition is
timely and that he has exhausted his available state court remedies with respect to the
claim raised in his petition.
Therefore, the petition is ready for a decision on the merits. Unfortunately for
Lagar, his petition must be denied because he has not shown that he is “in custody in
violation of the Constitution of laws . . . of the United States.” 28 U.S.C. § 2254(a).
FACTS
The material facts and background of this case in the Wisconsin courts are not

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disputed.

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 20 years in prison. He was given
a “presumptive” mandatory release date of October 8, 2009, and a discharge date of
November 29, 2015.

His presumptive mandatory release date was later corrected to

September 8, 2009.
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
“presumptive” mandatory release.

Exhibits provided by Lagar reflect that the Parole

Commission denied him release because: (1) he refused to participate in an Alcohol and
Other Drug Abuse (“AODA”) treatment program as recommended by prison social
workers; and (2) he continued to present a danger to the public.

For these same reasons,

the Parole Commission denied him release in two subsequent decisions on August 10,
2010, and on August 14, 2012.
Lagar eventually completed an AODA program on February 8, 2013, but the Parole
Commission has denied him release twice since then, on August 2, 2013 and April 28,
2014. (Dkt. #30 Exhs. H & J). The Parole Commission explained that although Lagar
had (reluctantly) completed an AODA program, he still needed to complete a CGIP
(Cognitive Intervention Program) and needed to participate in vocational education to
better prepare him for his release into the community. (Id.) The Parole Commission
reasoned that until he completed these tasks, his release posed too great a risk to the

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public. (Id.) 1
Lagar filed a petition for a writ of certiorari in Milwaukee County Circuit Court,
contending that the Parole Commission’s decision to withhold his release until he
participated in drug or alcohol treatment amounted to “involuntary commitment” and
violated Wisconsin’s presumptive mandatory release law. Lagar v. Graham, 2010CV913
(Milw. Cty. Cir. Ct.).

The court denied the petition, concluding that Lagar had not

shown the Parole Commission’s decision to be contrary to law. (Dkt. #8-4.) On August
11, 2011, Lagar filed a petition for writ of habeas corpus in Milwaukee County Circuit
Court, again challenging the Parole Commission’s denial of his release. Lagar v. Hepp,
2011CV12938 (Milw. Cty. Cir. Ct.). The circuit court denied this petition as well, which
the Wisconsin Court of Appeals summarily affirmed. Lagar v. Hepp, 2011AP2884 (Wis.
Ct. App. June 13, 2012). Lagar filed three additional petitions for writ of habeas corpus
challenging the Parole Commission’s decision in Milwaukee County Circuit Court, all of
which were denied.

Lagar v. State, 2012CV6974 (Milw. Cty. Cir. Ct. July 12, 2012);

Lagar v. Smith, 2012CV9409 (Milw. Cty. Cir. Ct. Nov. 15, 2012); Lagar v. Tegels,
2013CV1572 (Milw. Cty. Cir. Ct. May 7, 2013).
Finally, Lagar filed this habeas petition on July 11, 2013, contending that the
Parole Commission’s denial of his early release from prison violates his rights under the

These two, more recent decisions by the Parole Commission occurred after Lagar filed his federal
habeas petition. Although Lagar filed supplements to his petition regarding these Commission
decisions, he has not shown that he has challenged these decisions in state court as is required
before seeking federal habeas relief. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S.
838, 844 (1999) (state prisoner must present claims to state court before he make seek federal
habeas review). That being said, it is clear any challenge to these Parole Commission decisions
would fail for the same reasons that Lagar’s challenges to the earlier Commission decisions have
failed. Lagar could not show that he is “in custody in violation of the Constitution or laws or
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Eighth and Fourteenth Amendments. Having already denied preliminary relief, this court
now turns to the merits.
OPINION
A.

Due Process
As a preliminary matter, Lagar contends that the Parole Commission’s denial of his

presumptive mandatory release violated the Eighth Amendment’s protections of due
process and against cruel and unusual punishment. However, Lagar develops no separate
argument supporting the application of the latter protection under the Eighth Amendment
as to his case.

Instead, all of Lagar’s arguments appear subsumed in his due process

challenge. Accordingly, the court addresses Lagar’s challenges under the framework of
the Due Process Clause: whether the Parole Commission’s denial of his release deprived
him of a liberty interest protected by the Eighth Amendment’s due process clause.
“The first inquiry in every due process challenge is whether the plaintiff has been
deprived of a protected interest in ‘property’ or ‘liberty.’”
Sullivan, 526 U.S. 40, 59 (1999).

Am. Mfrs. Mut. Ins. Co. v.

A liberty interest may arise from the Constitution

itself, or may arise from an expectation created by state laws or policies. Wilkinson v.
Austin, 545 U.S. 209, 221-22 (2005).

While “[t]here is no constitutional or inherent

right of a convicted person to be conditionally released before the expiration of a valid
sentence,” a state may, but need not, create a liberty interest by establishing an
entitlement to parole based on certain criteria. Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7 (1979); Thompson v. Veach, 501 F.3d 832, 836 (7th Cir. 2007). In

treaties of the United States.”

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contrast, a parole scheme that is discretionary creates no liberty interest. Bd. of Pardons v.
Allen, 482 U.S. 369, 378 (1987); Grennier v. Frank, 453 F.3d 442, 444 (7th Cir. 2006).
For inmates like Lagar, whose crimes of conviction occurred before Wisconsin’s
“truth in sentencing” system, Wis. Stat. § 973.01, the parole system consists of a
discretionary and a mandatory scheme. See State ex rel. Gendrich v. Litscher, 2001 WI App
163, ¶ 7, 246 Wis. 2d 814, 623 N.W.2d 878 (describing Wisconsin’s parole schemes).
Lagar was subject to the discretionary parole scheme -- also known as the “presumptive
mandatory release” scheme -- because his crime qualified as a “serious felony.” See Wis.
Stat. § 302.11(1g)(am) (“presumptive mandatory release scheme applies to prisoners
serving a sentence for “a serious felony committed on or after April 21, 1994, but before
December 31, 1999”). In particular, Lagar’s cocaine delivery crime under then Wis. Stat.
§ 161.41(1) -- now § 964.41(1) -- was deemed a “serious felony” by statute at the time of
its commission on June 12, 1995. (Dkt. #29-1, Judgement of Conviction.)
This “presumptive mandatory release” scheme grants the Wisconsin Parole
Commission authority to deny release to an inmate on certain grounds:
(b) Before an incarcerated inmate with a presumptive mandatory release date
reaches the presumptive mandatory release date specified under par. (am), the
parole commission shall proceed under s. 304.06 (1) to consider whether to deny
presumptive mandatory release to the inmate. If the parole commission does not
deny presumptive mandatory release, the inmate shall be released on parole. The
parole commission may deny presumptive mandatory release to an inmate only on
one or more of the following grounds:
1.

Protection of the public.

2. Refusal by the inmate to participate in counseling or treatment that the
social service and clinical staff of the institution determines is necessary for
the inmate. . . . The parole commission may not deny presumptive
mandatory release to an
inmate because of the inmate's refusal to
participate in a rehabilitation program under s. 301.047.

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Wis. Stat. § 302.11(1g)(b).
In Gendrich, the Wisconsin Court of Appeals explained that the Parole
Commission’s discretion under a “presumptive mandatory release” scheme is “virtually
unlimited,” and therefore “does not create a protectable liberty interest in parole.” 2001
WI App 163, ¶ 7. For the same reason, Lagar cannot show that he was deprived of a
liberty interest when the Parole Commission denies his release. See also Akbar v. Thurmer,
No. 09-C-1045, 2010 WL 1375214, at *1 (E.D. Wis. Apr. 2, 2010) (dismissing § 2254
attack on the Parole Commission's decision to deny parole under § 302.11 because there
was no liberty interest at issue); Tooley v. Smith, No. 06-C-583-S, 2006 WL 3813657, at *1
(W.D. Wis. Dec. 21, 2006) (same); Wery v. Lautenschlager, No. 05-C-0896, 2005 WL
2176961, at *1 (E.D. Wis. Sept. 8, 2005) (same); McGrath v. Morgan, No. 05-C-393-C,
2005 WL 2002504, at *2 (W.D. Wis. Aug. 18, 2005) (same).
While Lagar acknowledges that he was subject to a discretionary parole scheme,
and that such a scheme does not, by itself, create a liberty interest protected by due
process, he argues that the Parole Commission nonetheless deprived him of a liberty
interest for three reasons. First, Lagar argues that he has a liberty interest in refusing to
participate in drug treatment programs against his will, but cites no legal authority to
support this argument.

The closest Lagar comes is several cases in which courts

concluded that individuals have a right to be free from involuntary treatment with
antipsychotic drugs, see, e.g., Washington v. Harper, 494 U.S. 210 (1990); Felce v. Fiedler,
974 F.2d 1484, 1494 (7th Cir. 1992), but there is an obvious difference in forcing an
inmate or parolee to ingest antipsychotic drugs and denying discretionary parole because

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an inmate refuses to participate in a drug treatment program.
Second, Lagar argues that he is being punished for being an alleged drug addict.
Here, Lagar cites to several cases in which courts have held that drug addiction itself
cannot be criminalized. See, e.g., Robinson v. California, 370 U.S. 660, 667 (1962); State v.
Bruesewitz, 57 Wis. 2d 475, 481, 204 N.W.2d 514, 516 (1973). Again, however, these
extreme cases are inapposite to Lagar’s situation, since he was not charged, convicted or
incarcerated for being a drug addict, nor was he denied parole for that reason.
Third, Lagar argues that the Parole Commission’s denial of his release for refusing
to participate in an AODA is contrary to the language of the presumptive mandatory
release statute itself.

In particular, Lagar points to language in the statute that the

“parole commission may not deny presumptive mandatory release to an inmate because of
the inmate’s refusal to participate in a rehabilitation program under s. 301.047.” Wis.
Stat. § 302.11(1g)(b)(2).

Lagar contends that this statute created a right, which the

Parole Commission then arbitrarily denied.
This primary problem with this third argument is that Lagar was never instructed
to participate in a “rehabilitation program under § 301.047,” or at least Lagar failed to
offer any evidence that the Residential AODA program (or “CGIP”) at Jackson
Correctional Institution, where he is incarcerated, would qualify under § 301.047. That
statute relates only to inmate rehabilitation programs run by “nonprofit community-based
organizations” and meeting a number of requirements, including that the organization
receive no compensation from DOC and agrees to provide “community-based aftercare
services for each inmate who completes the program.”

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Wis. Stat. § 301.047(1),(2).

Lagar has not shown that CGIP is operated by a nonprofit community based organization
meeting these requirements. Indeed, his only “evidence” on this point consists of:
(1) responses to Lagar’s information requests in which Warden Tegels’ states that
Jackson Correctional Institution contracts with Horizon Healthcare, an “outside
provider,” to facilitate the prison’s AODA program, (dkt. #16-1); and
(2) a vague letter written by the Office of Program Services for the DOC in
response to an apparent question from Lagar about § 301.047 and Jackson’s AODA
programs stating that “the AODA Residential Program at JCI would sufficiently
address the rehabilitative needs of inmates with a history of substance abuse,” (dkt.
#8-5).
Neither of these documents are sufficient evidence to find the AODA at Jackson is a
program under §301.047(1). At most, Tegels’ response suggests that the DOC contracts
(pays) outside providers to run the program.
Ultimately, the presumptive mandatory release law expressly authorizes the
Commission to deny presumptive mandatory release for “protection of the public,” and
relatedly an inmate’s refusal to participate in necessary counseling or treatment. Wis. Stat.
§ 302.11(1g)(b)(1). Lagar’s arguments ignore the fact that Commission denied his release
on both grounds. In other words, even if the Commission lacked the authority to deny
release because Lagar failed to complete the AODA program, the Commission had the
authority to deny release based on the independently sufficient grounds of protecting the
public.

In light of this, Lagar cannot show that he is in custody in violation of his

constitutional rights.
B.

Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue or

deny a certificate of appealability when entering a final order adverse to petitioner. A

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certificate of appealability will not issue unless the petitioner makes “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires a
petitioner to demonstrate that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). Although the rule allows a court to ask the parties to submit arguments
on whether a certificate should issue, it is not necessary to do so in this case. For the
reasons already stated, the court concludes that petitioner has not made a showing,
substantial or otherwise, that the Parole Commission’s decisions resulted in denial of his
constitutional rights. Because reasonable jurists would not otherwise debate whether a
different result was required, no certificate of appealability will issue.

ORDER
IT IS ORDERED THAT Humberto Lagar’s petition for a writ of habeas corpus is
DENIED and this case is DISMISSED. No certificate of appealability will issue.
Entered this 23rd day of October, 2015.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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