Habeas Corpus — ineffective assistance

Listen to this article

U.S. Court of Appeals for the 7th Circuit

Criminal

Habeas Corpus — ineffective assistance

Where the state court reinstated a prisoner’s appeal rights, it was not unreasonable in refusing to order a different attorney appointed for the prisoner.

“After the court determined that Grau was ineffective for failing to file a no-merit report, it reinstated Miller’s appeal rights and ordered Grau to file a no-merit report. The purpose of the no-merit process is to give Miller the added protection of having the appellate court review his record independently and determine whether meritorious issues exist in order to directly appeal. See Anders v. California, 386 U.S. 738, 744 (1967) (establishing the no-merit process). Miller refused the opportunity for this added protection when he informed the Wisconsin Court of Appeals that he would continue his appeal pro se. Since Miller discharged Grau before he could prepare a no-merit report pursuant to the court’s order, Miller actively refused the benefit of the no-merit process.”

“After Miller discharged his appointed counsel, the court directed him to file either a post-conviction motion or a notice of appeal, providing Miller with yet another opportunity to raise his claim about the validity of his guilty plea. Miller failed to file either, and the time to do so expired. Miller failed to offer a reason that would excuse his failure to comply with the state procedural requirements. Coleman, 501 U.S. at 753.”

“The Wisconsin Court of Appeals’ denial of Miller’s request for new appellate counsel was not clearly contrary to or an unreasonable application of clearly established federal law and his challenge to the validity of his plea is procedurally defaulted.”

Affirmed.

13-1796 Miller v. Smith

Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Bauer, J.