No Merit Report Case Analysis

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The court’s decision in this case must be very carefully applied, lest Wisconsin courts run afoul of the Seventh Circuit’s decision in Page v. Frank, 343 F.3d 901 (7th Cir. 2003), and claims get reinstated by the federal courts.

In that case, Page was convicted in Wisconsin state court of two counts of homicide and one of attempted armed robbery. At the trial level, only a perfunctory challenge was made to his unsigned confession — the most incriminating evidence against him. Appellate counsel filed an unsuccessful postconviction motion challenging the jury instructions, but no Miranda issues.

Counsel then filed a no-merit report, addressing three issues. Page filed a response, addressing two more. Neither Page nor counsel raised a Miranda issue. The court of appeals affirmed the convictions, and granted appellate counsel’s motion to withdraw.

Page then filed a pro se postconviction motion, claiming ineffective assistance by both trial and appellate counsel for failing to raise the Miranda issue, and a confrontation clause claim. The circuit court denied the motion, finding waiver under State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994). The court of appeals affirmed, denying the ineffective assistance of appellate counsel claim, because the underlying issue had previously been found meritless. Page, 343 F.3d at 903-904.

Page then filed a habeas corpus petition in federal court, which the district court denied. Page appealed, and the Seventh Circuit reversed.

The State argued that, by failing to claim ineffective assistance of trial counsel in response to the no-merit report, Page waived the issue, but the Seventh Circuit disagreed, reasoning, "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." Id., at 909.

The Seventh Circuit then remanded the case to the federal district court to consider whether trial counsel was ineffective in not strongly contesting the admission of the confession.

In light of Page, the decision in the case at bar should be applied with great care. The above quote suggests that, as far as the Seventh Circuit is concerned, it is the job of qualified appellate counsel to identify any meritorious issue, and the failure of the defendant to raise any such issue cannot be held against him.

It is noteworthy, however, that Page framed one of his issues as ineffective assistance of appellate counsel, for failing to argue that trial counsel was ineffective in failing to strongly raise a Miranda challenge. It appears that Tillman never framed his postconviction motion in that fashion, though he could have.

In addition, in the case at bar, the court of appeals found that the multiplicity issue was merely a variation on Tillman’s earlier claim that there was only a factual basis for two convictions, not three, a claim that had already been considered and rejected by the court of appeals during consideration of the no-merit report and Tillman’s response.

The court wrote, "Tillman’s current phrasing of his grievance in terms of double jeopardy and multiplicity is simply a resurrection of his prior arguments under new labels," and, "Tillman has failed to present a sufficient reason why his current ‘spin’ on this already adjudicated issue was not previously raised."

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Thus, if a court is going to reject a prisoner’s postconviction motion on the basis of Escalona-Naranjo, and the decision in the case at bar, it would be wise to make sure that these statements apply. If the court merely finds that the defendant failed to raise an issue in the response to the no-merit report, with no good reason for the failure, and therefore holds that the issue is waived, the federal courts may ultimately take a different view of the matter.

Another issue to which careful attention must be paid is whether the defendant was informed that he must raise an issue in his response to a no-merit report. The court in this case distinguished the case of Wilkinson v. Cowan, 231 F.3d 347 (7th Cir. 2000), in which the Seventh Circuit held that a defendant was not procedurally barred from claiming ineffective assistance of counsel.

In Wilkinson, the clerk of the federal court advised the defendant hat he could respond to the no merit report, but did not advise that it was his obligation to do so, if he wanted to preserve the claim for further review. The court of appeals distinguished Wilkinson, because Tillman did file a response. In subsequent cases, however, courts may need to inquire whether counsel advised the defendant of his obligation to respond to the no merit report, to preserve any issue for appeal.

– David Ziemer

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David Ziemer can be reached by email.