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Criminal Procedure; Ineffective assistance

Criminal Procedure; Ineffective assistance

A defendant who argues in a habeas petition that he received ineffective assistance of appellate counsel because certain arguments were not raised must demonstrate that the claims he believes should have been raised on appeal were “clearly stronger” than the claims that were raised.

“We now adopt this ‘clearly stronger’ pleading standard for the deficiency prong of the Strickland test in Wisconsin for criminal defendants alleging in a habeas petition that they received ineffective assistance of appellate counsel due to counsel’s failure to raise certain issues. As we have previously noted, ‘[w]e need finality in our litigation.’ Escalona-Naranjo, 185 Wis. 2d at 185. We also must respect the professional judgment of postconviction attorneys in separating the wheat from the chaff. Cf. Jones v. Barnes, 463 U.S. 745, 753 (1983) (‘A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions.’) (citation omitted). The U.S. Supreme Court has ‘emphasized that the right to appellate representation does not include a right to present frivolous arguments,’ Robbins, 528 U.S. at 272, and that, in fact, an appellate attorney has an ethical obligation not to ‘advance[e] frivolous or improper arguments . . . .’ McCoy v. Wis. Court of Appeals, 486 U.S. 429, 435 (1988). The ‘clearly stronger’ standard achieves these objectives while at the same time ensuring that a defendant whose appellate attorney did not raise meritorious issues may still seek habeas relief.”

Affirmed.

2010AP425 State v. Starks

Gableman, J.

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