Seventh Circuit sanctions subsequent appeals

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“It would be incongruous to maintain that Mr. Page has a Sixth Amendment right to counsel on direct appeal, but then to accept the proposition that he can waive such right by simply failing to assert it in his pro se response challenging his counsel’s Anders motion.” Hon. Kenneth F. Ripple Seventh Circuit Court of Appeals

The Seventh Circuit held on Sept. 11, that, even though a prisoner did not raise the ineffectiveness of trial counsel in his response to his postconviction/appellate (P/A) attorney’s no-merit brief, he has the right to challenge the effectiveness of his (P/A) attorney in not raising the issue, in a subsequent sec. 974.06 motion.

In 1994, Emmanuel Page was convicted in Milwaukee County Circuit Court of two counts of intentional homicide and one count of attempted armed robbery.

At trial, the most incriminating evidence that Page was the shooter was his alleged confession in the handwriting of Detective Sliwinski, one of the two officers who had questioned Page at the police station.

The document provided two places for Page to sign — one indicating that the individual agreed to waive Miranda rights and provide a statement and the other affirming the accuracy of the statement. Page signed neither, and the document provided no explanation for this omission.

Page testified at trial that he had invoked his Miranda rights but that the officers nevertheless had continued to question him and to ask him to sign a number of statements. Detective Sliwinski testified that Page had agreed to make a statement, had agreed to its accuracy, but nevertheless had refused to sign the form.

Prior to trial, Page filed a one-page motion to suppress the alleged confession on the ground that the statement had been procured through a violation of Page’s Miranda rights; however, at the suppression hearing, counsel neither briefed the issue nor invited the court’s attention to any relevant case law. The trial court determined that, as a matter of law, the statement’s lack of signatures went to credibility and not admissibility. The trial court then denied the motion to suppress the statement without addressing the Miranda issue.

Trial counsel withdrew from the case after sentencing, and was replaced by new counsel. P/A counsel filed a postconviction motion in the state trial court, pursuant to sec. 974.02, presenting only one issue: whether certain jury instructions regarding lesser-included offenses should have been given. The trial court denied the motion.

P/A counsel then filed a no-merit brief in the Court of Appeals of Wisconsin, pursuant to Anders v. California, 386 U.S. 738 (1967). The no-merit brief presented three issues, and Page filed a pro se response that raised two additional issues. None of these issues addressed the allegedly improper confession, the Miranda violation, or the effectiveness of trial counsel.

The court of appeals granted the Anders motion, permitted counsel to withdraw and affirmed the trial court’s decision after reviewing the record and finding no issues of arguable merit.

Page, then proceeding pro se, filed a second postconviction motion in the trial court, pursuant to sec. 974.06. The motion asserted several constitutional claims, including ineffective assistance of P/A counsel for failing to raise the Miranda violation, a confrontation clause claim, and an ineffective assistance of trial counsel claim.

The trial court denied the motion, holding that the issues presented had no merit and further reasoned that, as a consequence, neither of Page’s attorneys had been deficient in failing to raise them. The court also held that the issues were waived because Page did not raise them in his response to the no-merit brief. The court further held that Page could not overcome the waiver because he had not shown good cause for failing to raise these issues on the direct appeal.

Page appealed, and the court of appeals affirmed, holding that Page was procedurally barred by the Supreme Court of Wisconsin’s ruling in State v. Escalona-Naranjo, 517 N.W.2d 157 (Wis. 1994).

Page next filed a pro se petition seeking a writ of habeas corpus in the Eastern District of Wisconsin. He raised several constitutional issues, including ineffective assistance of trial counsel. District Judge Lynn Adelman denied the petition, holding that the ineffective assistance of appellate counsel claims had been procedurally defaulted and that federal review therefore was barred.

Page
appealed, and the Seventh Circuit reversed in a decision by Judge Kenneth F. Ripple.

Governing Statutes

The court began by setting forth the procedure for criminal appeals in Wiscon-sin, noting that a defendant’s first avenue of relief is a postconviction motion under sec. 974.02 before the trial court. If an issue is raised in the sec. 974.02 motion, but relief is denied by the trial court, the defendant then may appeal to the Court of Appeals of Wisconsin.

After the times for filing postconviction motions under 974.02 and for taking the subsequent direct appeal have expired, the defendant has the option of seeking a collateral attack on the judgment under sec. 974.06.

However, sec. 974.06(4) provides, “All 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.”

The Wisconsin Supreme Court interprets the provision to exclude all issues that were or could have been raised in a sec. 974.02 postconviction motion or appeal, including constitutional issues, unless the defendant provides “sufficient reason” for not raising the issues in that earlier proceeding. Escalona-Naranjo, 517 N.W.2d 157, 162 (Wis. 1994).

State Proceedings

The court found that the district court was only “partially correct” in deciding that the Wisconsin court rested its decision on procedural default grounds. However, the court also found that the court of appeals also decided the issue on the ground that it would not readdress issues that had been litigated previously.

As a result, the court concluded that federal habeas review is not barred, because only a procedural default bars such review. Quoting Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002), the court iterated, “[I]f the decision of the last state court to which the petitioner presented his federal claims fairly appears to rest primarily on the resolution of those claims, or to be interwoven with those claims, and does not clearly and expressly rely on the procedural default, we may conclude that there is no independent and adequate state ground and proceed to hear the federal claims.”

Because the Court of Appeals of Wisconsin based its disposition of the ineffective assistance of appellate counsel claim on its conclusion that the merits of the claim had been resolved previously, the court concluded that it had made a merit-based determination, and there was no bar to further consideration in a federal habeas action.

No Waiver

The court then rejected the State’s argument, and the conclusion of the Wisconsin Court of Appeals — that Page waived the right to contest ineffective assistance of trial counsel by not raising that claim in his response to his P/A attorney’s no-merit brief.

The court concluded, “we do not believe that an even-handed application of Wisconsin law permits such a result. It is clear that Wisconsin law would not have permitted Mr. Page to make such an argument before the Court of Appeals of Wisconsin without its having been raised initially before the trial court.”

The court cited two unpublished Wisconsin Court of Appeals’ decisions, which declined to address ineffective assistance of counsel claims raised in response to no-merit briefs, because the matter was not first raised in the trial court. State v. Neita, No. 95-2858-CR-NM, 1996 WL 426110 (Wis.Ct.App. July 31, 1996); and State v. Fadness, No. 87-2093-CR-NM, 1988 WL 148281 (Wis.Ct.App. Dec. 21, 1988).

The court concluded, “When Mr. Page’s postconviction counsel failed to as
sert a claim of ineffective assistance of trial counsel in the sec. 974.02 motion before the trial court, he foreclosed Mr. Page’s opportunity to argue such a claim on direct appeal. Consequently, the appropriate forum for Mr. Page’s challenge to the ineffective assistance of postconviction counsel for failure to raise the issue of ineffective assistance of trial counsel was in a collateral motion under sec. 974.06. Mr. Page properly brought such a motion and argued ineffective assistance of postconviction counsel.”

	Links Seventh Circuit Court of Appeals Related Article Case Analysis

The court continued, “The practical effect of the Court of Appeals of Wisconsin’s conclusion — that the failure to identify ineffective assistance of trial counsel as an issue in response to an Anders no-merit brief constitutes a waiver — is to require Mr. Page to have asserted a claim before the court of appeals that, under established Wisconsin case law, he could not bring initially in that forum because it had not been brought to the attention of the trial court. Federal habeas review cannot be precluded on such a ground because the basis relied upon by the Wisconsin court does not apply Wisconsin procedure in a ‘consistent and principled way.’ Braun, 227 F.3d at 912.”

The court added, as a “more fundamental reason” why Page could not have waived the claim, that a defendant possesses the Sixth Amendment right to effective assistance of counsel through his first appeal of right, and a waiver of that right must be “an intentional relinquishment or abandonment of a known right or privilege.”

Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

The court reasoned, “It would be incongruous to maintain that Mr. Page has a Sixth Amendment right to counsel on direct appeal, but then to accept the proposition that he can waive such right by simply failing to assert it in his pro se response challenging his counsel’s Anders motion.”

Accordingly, the court reversed, and remanded the case to the district court for consideration of the merits of Page’s petition.

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David Ziemer can be reached by email.