Wagner v. Noble

• Decision Date: 31 August 2021
• Docket Number: 16-cv-106-pp
• Citation: Wagner v. Noble, 16-cv-106-pp (E.D. Wis. Aug 31, 2021)
• Parties: JODY WAGNER, Petitioner, v. JON NOBLE, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

JODY WAGNER, Petitioner, v. JON NOBLE, Respondent.

No. 16-cv-106-pp

United States District Court, E.D. Wisconsin

August 31, 2021

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (DKT. NO. 22), DENYING AS MOOT PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL (DKT. NO. 21), DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY AND DISMISSING CASE WITH PREJUDICE

PAMELA PEPPIER CHIEF UNITED STATES DISTRICT JUDGE

On January 28, 2016, the petitioner, who is incarcerated at Kettle Moraine Correctional Institution and is representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2254, challenging his 2011 conviction in Waukesha County Circuit Court for aggravated battery and first-degree reckless injury. Dkt. No. 1. On October 19 2020, the court screened the petition under Rule 4 of the Rules Governing Section 2254 Cases, ordered the respondent to answer or otherwise respond and set a briefing schedule. Dkt No. 18. Three weeks later, the petitioner filed a motion for appointment of counsel. Dkt. No. 21. On December 18, 2020 the respondent filed a motion to dismiss the petition for procedural default, dkt. no. 22, and a supporting brief, dkt no. 23. On February 22, 2021, the petitioner filed a brief in opposition to the motion to dismiss. Dkt. No. 26. The respondent replied two months later. Dkt. No. 29.

This order grants the respondent's motion to dismiss the petition, denies the petitioner's motion for appointment of counsel as moot and dismisses the case with prejudice.

I. Background

A. State Case

1. Trial in Waukesha County Circuit Court

On May 28, 2010, the State charged the petitioner with aggravated battery and first-degree reckless injury. State v. Wagner, Case No. 2010CF000554 (Waukesha County Circuit Court) (available at https://wcca.wicourts.gov). The Wisconsin Court of Appeals recounted the relevant facts in its decision affirming the petitioner's conviction:

Melissa Holcomb, [the petitioner's] former girlfriend, testified that [the petitioner] found her kissing another man, pulled her to the floor and repeatedly punched and kicked her resulting in a broken arm, a broken finger and a perforated intestine. Those allegations constitute the basis for the aggravated battery charge. [The petitioner] then picked her up and carried her to bed where he left her without medical care for two days until Holcomb's mother interceded and [the petitioner] took Holcomb to the hospital. By that time, Holcomb was within hours of death due to sepsis. Leaving Holcomb in a condition where she was unable to care for herself and where lack of care could result in her death from sepsis constitutes the basis for the reckless injury charge.

Dkt. No. 23-1 at 2.

On November 18, 2010, a Waukesha County jury found the petitioner guilty of both charges. Dkt. No. 1 at 2; see also Wagner, Case No. 2010CF000554 (available at https://wcca.wicourts.gov). Two months later, the court sentenced the petitioner to three years of initial confinement followed by three years of extended supervision on Count One, and fourteen years of initial confinement followed by ten years of extended supervision on Count Two, consecutive to the sentence imposed on Count One. Wagner, Case No. 2010CF000554 (available at https://wcca.wicourts.gov). The court entered judgment the next day. Id.

2. No-merit report and the petitioner's response

On December 13, 2011, the petitioner filed a notice of appeal. State v. Wagner, Appeal No. 2011AP002878 (available at https://wscca.wicourts.gov). A month later, Attorney Patrick Flanagan filed a no-merit report. Id. Attorney Flanagan's no-merit report found “no arguable basis for [the petitioner] to challenge the sufficiency of the evidence or the sentences imposed for aggravated battery and first-degree reckless injury.” Dkt. No. 23-1 at 1. On April 11, 2012, the petitioner filed a response. Wagner, Appeal No. 2011AP002878 (available at https://wscca.wicourts.gov). The petitioner argued that “(1) the State failed to meet its burden of proof on the reckless injury charge because it failed to prove utter disregard for life and because the victim was not credible; (2) the court lacked subject matter jurisdiction; (3) the State failed to complete discovery by serving the defense with a copy of an envelope; and (4) [the petitioner] was denied a fair trial due to several incidents that occurred during the trial.” Dkt. No. 23-1 at 1-2.

On July 3, 2012, the Wisconsin Court of Appeals summarily affirmed the petitioner's conviction. Id. at 1, 6. The appellate court concluded that the jury reasonably found the petitioner guilty of reckless injury, the petitioner failed to present a basis to challenge the trial court's subject matter jurisdiction, the state's failure to turn over an envelope during discovery did not prejudice the petitioner and none of the incidents the petitioner identified denied the petitioner a fair trial or presented a basis to challenge his sentence. Id. at 2-5.

On July 27, 2012, the petitioner filed a motion for reconsideration. Wagner, Appeal No. 2011AP002878 (available at https://wscca.wicourts. gov). Four days later, the court denied the motion. Id. On August 27, 2012, the petitioner filed a petition for review in the Wisconsin Supreme Court. Id. On November 14, 2012, the Court denied review. Id.

3. October 25, 2013 postconviction motion

On October 25, 2013, the petitioner filed in the circuit court a postconviction motion under Wis.Stat. §974.06. Wagner, Case No. 2010CF000554 (available at https://wcca.wicourts.gov). The petitioner raised ten grounds for relief: (1) ineffective assistance of trial and postconviction counsel for failing to raise issues; (2) ineffective assistance of trial counsel for failing to discuss discovery and legal issues with the petitioner; (3) a Brady violation from the state's failure to turn over an envelope in discovery; (4) a violation of state law and the Sixth Amendment for the state's failure to begin the petitioner's trial in a timely fashion; (5) a violation of the petitioner's Miranda rights; (6) insufficient evidence to support his aggravated battery conviction; (7) outside influences that prejudiced the jury; (8) lack of subject matter jurisdiction; (9) imposition of multiple sentences for a single act; and (10) the petitioner's contention that his conviction was unfair, unjust and invalid. Dkt. No. 1-1 at 9-10.

On February 20, 2014, the court denied the motion. Id. at 8-17. The court recalled that the Court of Appeals had considered and rejected five of the petitioner's claims-that insufficient evidence supported the aggravated battery conviction, that the circuit court lacked subject matter jurisdiction, that the state's failure to turn over an envelope constituted a Brady violation, that outside influences prejudiced the jury and that the petitioner received multiple sentences for a single act-when it analyzed his response to Attorney Flanagan's no-merit report. Id. at 11-12. The circuit court stated that claims or issues “decided in the no merit process may not again be raised in a section 974.06 motion, unless a basis for doing so is set forth.” Id. (citing State v. Tillman, 281 Wis.2d 157, ¶27 (Ct. App. 2005)). It emphasized that the Court of Appeals considered those issues again in the petitioner's motion for reconsideration. Id. at 12. The court found the petitioner's arguments of these issues in his §974.06 motion “conclusionary” and lacking “a basis for [the] court to find that new circumstances [were] raised convincing the court to not apply the bar.” Id. The court concluded that the petitioner's other claims were undeveloped and meritless. Id. at 12-17.

4. July 8, 2015 Court of Appeals decision

On July 8, 2015, the Court of Appeals summarily affirmed the circuit court's denial of the petitioner's postconviction motion. Dkt. No. 23-2. The appellate court concluded that Wis.Stat. §974.06 and State v. Escalona-Naranjo, 185 Wis.2d 168 (1994) barred the petitioner's claims. Id. at 3. The court explained that Wis.Stat. §974.06 provides that

[a]ll grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.

Id. at 3 n.2.

Observing that the petitioner's postconviction motion raised “several of the same claims that were rejected in the no-merit appeal, ” the court explained that those arguments could not be relitigated. Id. at 4 (citing State v. Witkowski, 163 Wis.2d 985, 990 (Ct. App. 1991)). As to new claims, the court found that the petitioner did not show a sufficient reason for failing to raise them on direct appeal. Id. As to the petitioner's argument that postconviction counsel's ineffectiveness constituted a sufficient reason for failing to raise his claims earlier, the court found it “conclusory and legally insufficient, ” and concluded that it was not a basis for circumventing the Escalona-Naranjo bar. Id. at 4.

B. Federal Habeas Petition

On January 28, 2016, the petitioner filed this federal habeas petition. Dkt. No. 1. The petition asserted six grounds for relief: (1) that insufficient evidence supported his reckless injury conviction; (2) that his trial counsel was ineffective for failing to hire a medical expert (3) that his appellate counsel was ineffective for failing to discover that a “jailhouse informant received...