Lass v. Wells

• Docket Number: 21-CV-578
• Decision Date: 31 August 2023
• Parties: RODNEY L. LASS, Petitioner, v. JASON WELLS, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

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RODNEY L. LASS, Petitioner,
v.
JASON WELLS, Respondent.

No. 21-CV-578

United States District Court, E.D. Wisconsin

August 31, 2023

DECISION AND ORDER

WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

1. Background

Rodney L. Lass beat, raped, stabbed, and strangled his girlfriend, Caroline,^[1]over the span of their years-long relationship. (ECF No. 12-1.) Following a nine-day trial, a jury found him guilty of various offenses and the court sentenced him to decades in prison. (ECF No. 12-1.) After unsuccessfully challenging his convictions in state court Lass has turned to federal court with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 1.)

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Lass argues he is entitled to relief on three grounds: vindictive prosecution; ineffective assistance of trial counsel; and denial of the right to self-representation.^[2] All parties have consented to the full jurisdiction of a magistrate judge. See 28 U.S.C. § 636(c); (ECF Nos. 3; 10; 11).

2. Applicable Law

A person incarcerated pursuant to a state court judgment who seeks habeas corpus relief in federal court faces a high hurdle. Turner v. Brannon-Dortch, 21 F.4th 992, 995 (7th Cir. 2022). Before the court can even get to the merits of a claim, the petitioner must show that the claim is cognizable in habeas, see, e.g., 28 U.S.C. § 2254(d)(1) (requiring that a claim must allege a violation of “clearly established Federal law”); Stone v. Powell, 428 U.S. 465 (1976) (holding that violations of the Fourth Amendment generally do not merit habeas relief), that he has exhausted his state court remedies, 28 U.S.C. § 2254(b)(1), that he filed his petition within one year of his conviction becoming final or the claim arising, 28 U.S.C. § 2254(d)(1), that he has not filed a prior habeas petition regarding the same conviction, 28 U.S.C. § 2244(d), and that the state court

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considered the claim on its merits (and did not deny it for independent state law reasons), Beard v. Kindler, 558 U.S. 53, 55 (2009).

Only if the petitioner clears these preliminary hurdles may the federal court consider the merits of a claim. And here, too, the bar is high. A habeas petitioner is entitled to relief only if “the state court's decision was ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.'” Turner, 21 F.4th at 995 (quoting 28 U.S.C. § 2254(d)(1)). “This standard is difficult to meet.” Id. (quoting Mays v. Hines, 141 S.Ct. 1145, 1149 (2021) (per curiam)).

Habeas relief is “not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011). Rather, it is reserved for “extreme malfunctions in the state criminal justice systems.” Id. at 103 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment)). Thus, a petitioner is not entitled to relief merely by showing that the state court's decision was wrong. The petitioner must show that the state court's decision was so wrong as to be unreasonable. Mays, 141 S.Ct. at 1149. A decision is unreasonable only if “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.” Harrington, 562 U.S. at 102.

3. Vindictive Prosecution

Lass was initially charged with two counts of misdemeanor battery and one count of disorderly conduct. The disorderly conduct count was dismissed

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(ECF No. 12-11 at 37 (the reasons for its dismissal are not clear from the record)) and Lass proceeded to trial on the two battery counts, the first relating to events occurring on June 17, 2012 (ECF No. 12-10 at 76-77) and the latter relating to events occurring on June 30, 2012 (ECF No. 12-10 at 77). Assistant District Attorney Margaret Kunisch took the lead role at trial, although Assistant District Attorney Jennifer Williams, who at that time had the surname Hanson, also appeared. The jury trial before the Honorable Mary E. Triggiano ended shortly after it started.

During ADA Kunisch's direct examination of Caroline, the prosecutor asked if Lass said anything when he was choking her. Caroline testified, in part, that Lass said:

You stupid bitch. You think you're going to get away from me? You think you're going to put me back in jail I'm not going to jail for you. It's me or you. It's going to be -- it's going to be you. I'll take your life before you take mine. My voice is going to be the last voice you hear on this earth.

(ECF No. 12-11 at 26.) The court held an in-chambers conference regarding the statement about Lass going “back” to jail, and Lass elected not to move for a mistrial. (ECF No. 12-11 at 27-29.) At the conclusion of this conference ADA Williams told Lass's attorney that, if he moved for a mistrial and the motion was granted, she would file felony charges against Lass. (ECF No. 12-5 at 71, ¶ 4.)

Testimony resumed and, shortly thereafter, the state asked Caroline why she initially did not report these incidents to police. She responded:

I never called the police on Rodney because -- it's kind of a twofold answer -- one, because I loved him, and, two, because he had always threatened me that if I called the police, if I pressed charges, that my daughter would

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be kidnapped and raped in front of me and then cut into pieces and used as fish food, that my body would never be found, tires burn really hot -

(ECF No. 12-11 at 33.)

This answer led to another conference, and this time Lass moved for a mistrial. (ECF No. 12-11 at 35, 37-38.) The state, by Williams, opposed the motion (ECF No. 12-11 at 36), but the court granted it (ECF No. 12-11 at 38-39).

In the following months the state moved to dismiss the misdemeanor charges and filed a new case, see Wis. Cir. Ct. Access, Milwaukee Cnty Cir. Ct Case No. 2013CF001603, available at https://wcca.wicourts.gov, charging Lass with three counts of strangulation, two counts of aggravated battery, three counts of intimidation of a victim, one count of second-degree sexual assault, and two counts of misdemeanor battery. In all, the state alleged six different incidents of violence, one each occurring in 2008, 2009, 2010, and 2011, and the two June 2012 incidents that formed the basis for the misdemeanor charges. But with respect to the two June 2012 incidents, in addition to misdemeanor charges of battery, the state added to each incident felony charges of strangulation and intimidation of a victim. The new felony case was assigned to the Honorable Ellen R. Brostrom.

At a subsequent conference Williams told defense counsel that she was personally dedicated to prosecuting Lass, and even though her assignment within the District Attorney's Office was changing, she was going to stay on the case. She further

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said that, even if she left the District Attorney's Office, she would come back and prosecute Lass pro bono. (ECF No. 12-5 at 72, ¶ 10.)

Lass moved to dismiss the felony charges on the ground that they were brought to punish him for exercising his right to a mistrial. Rather than holding a formal hearing where Lass would have been able to cross-examine Williams, Judge Brostrom accepted Williams's vague explanation for the new charges:

I learned about the history of domestic violence from the victim in a face-to-face conversation at some point in my interaction with her, I know for a fact, in December, during - either before, during, or after the misdemeanor trial.

When she told me about the incidents, I was not aware whether police reports had been filed. I do not remember if she was able to, with specificity, explain that she made police reports. But I do remember learning from her, [Caroline], that is, that she had sought medical attention for her injuries she claimed were inflicted by Rodney Lass.

At that point, I began to research whether or not I could bring additional charges, whether they were within the statute of limitation, which I found out later they were, and then I also discovered that there were police reports supporting what the victim was telling me. I don't remember when I learned about the police reports.

But I can tell the Court, in all candor, when I heard about what he had done to her to inflict these injuries in the past during the course of their relationship, considering my oath as a prosecutor, I was almost convinced that I had no choice but to file these charges. That explains my rationale.

(ECF No. 12-12 at 8-9.)

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The circuit court denied Lass's motion, finding no vindictive prosecution, and explained that, while Williams's timing may have been “unfortunate,” she had “a duty of candor” to let the defendant “know pertinent information.” (ECF No. 31-10 at 10.)

When Lass raised the issue again in a motion for post-conviction relief he again requested an evidentiary hearing. Post-conviction proceedings were addressed by the Honorable Jeffrey A. Wagner, who concluded that an evidentiary hearing was unnecessary. He stated:

The court was fully aware of Attorney Haney's affidavit and the State's position, and thus, it was not error to forego a formal evidentiary hearing for purposes of swearing both attorneys in. Judge Brostrom had sufficient information to make a ruling on the defendant's vindictive prosecution claim, and this court concurs with the result. Given that nothing new exists in support of the defendant's claim, the court declines to hold an evidentiary hearing in which the attorneys state the same thing under oath.

(ECF No. 1 at 26.)

The Wisconsin Court of Appeals concluded that the circuit court had correctly denied Lass an evidentiary hearing, stating, “We conclude that Lass's postconviction motion fails to allege facts that, if adduced at an evidentiary hearing, would entitle him to relief, either based on proof of a realistic likelihood of prosecutorial...