08-1153 Morales v. Boatwright

Listen to this article

Habeas Corpus
Waiver

Because a defendant in Wisconsin cannot raise an ineffective assistance of counsel argument in a no-merit response, the issue is not waived.

"[I]t appears that under Wisconsin law, Morales could not have raised the ineffectiveness issue in his no-merit response. The Wisconsin Court of Appeals, ruling on his direct appeal, plainly stated that '[a]ny claim of ineffective assistance must first be raised in the trial court,' citing State v. Machner, 285 N.W.2d 905 (Wis. Ct. App. 1979), and found that it was 'inappropriate for this court to determine competency of trial counsel based on unsupported allegations.' So, while Wisconsin argues that the court considered Morales's new ineffectiveness claims on appeal, the court's opinion makes clear that waiver was an independent and adequate ground for the state court's decision. Thus, Morales faced the same dilemma that we found dispositive in Page. Page's application therefore seems appropriate here; a defendant should be able to collaterally attack the performance of his counsel if he had no real opportunity to raise this issue on direct appeal. See also Cone v. Bell, 129 S. Ct. 1769, 1780 (2009) ('[T]he adequacy of state procedural bars to the assertion of federal questions . . . is not within the State's prerogative finally to decide; rather, adequacy is itself a federal question.' (quotations omitted))."

Affirmed.

08-1153 Morales v. Boatwright

Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Tinder, J.

Full Text