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No response to no-merit will usually forfeit issues

The Wisconsin Supreme Court has taken another stab at clarifying when a prisoner has procedurally defaulted his claims of error.

On July 16, the court held that, while a defendant is not required to file a response to his attorney’s no-merit report, “a defendant may not raise issues in a subsequent sec. 974.06 motion that he could have raised in response to a no-merit report, absent a ‘sufficient reason’ for failing to raise the issues earlier in the no-merit appeal.”

The court added, “Failure of a defendant to respond to both a no-merit report and the decision on the no-merit report firms up the case for forfeiture of any issue that could have been raised.”

Aaron Antonio Allen was charged with armed robbery and possession of a firearm by a felon. After protracted proceedings involving nine different attorneys, Allen was ultimately convicted and sentenced to 37 years of imprisonment.

An attorney was appointed to represent him on appeal, and he filed a no-merit report pursuant to Rule 809.32(1), raising three potential issues for appeal, but concluding that none had arguable merit.

Allen did not respond, and the Court of Appeals agreed that an appeal would be frivolous.

Nearly seven years later, Allen filed a pro se motion for postconviction relief pursuant to sec. 974.06, alleging that postconviction counsel was ineffective, for failing to claim that trial counsel was ineffective.

The circuit court held the issue was waived for failure to raise it in response to his appellate counsel’s no-merit report. The Court of Appeals affirmed, and Allen filed a petition for review.

The Supreme Court appointed counsel to represent Allen, and granted review, but affirmed in an opinion by Justice David T. Prosser.

The court concluded that a defendant’s failure to respond to a no-merit report does not necessarily permit a subsequent postconviction motion, nor does it necessarily foreclose one.

The court found that if a defendant had an absolute right to raise new claims in a subsequent motion, “A defendant could sit on his hands, with full knowledge of meritorious issues, and wait to make his claims in a future motion.”

But the court also found it would go too far to hold that any issue not raised by the defendant is forfeited. The court held that, if appellate counsel and the court of appeals fail to follow the proper procedures, the defendant will “often” have a sufficient reason for not raising an issue.

The court also found that it is possible that a meritorious issue might be raised neither by appellate counsel, nor the Court of Appeals, and thus a sufficient reason would exist for permitting the defendant to raise the issue in a new motion.

However, the court added that, when that happens, the defendant should act promptly, by filing either: (1) a motion for reconsideration of the decision under Rule 809.32(1); (2) a petition for review with the Supreme Court; or (3) an immediate sec. 974.06 motion, identifying any issue of arguable merit that was overlooked and explaining why nothing was said in a response to the no-merit report.

Turning to the merits of Allen’s motion, the court found that his seven year delay was excessive, that none of his claims of ineffective assistance of counsel had merit, and that he presented no sufficient reason for not raising the issues in a response to the no-merit report. Accordingly, the court affirmed.

Chief Justice Shirley S. Abrahamson filed a concurrence, joined by Justice Ann Walsh Bradley, proclaiming, “This case illustrates the legal house of mirrors that postconviction procedure in Wisconsin has become.”

The concurrence complained that, in order to evaluate whether a defendant has a sufficient reason for not raising an issue earlier, the court must evaluate the merits of the claims, a process she called a “double-refracted way of looking at the constitutional issues.”

The concurrence also complained that one of the issues certified was whether appointed appellate counsel is required to advise the client that a response to a no-merit report is necessary to preserve claims for further review.

Abrahamson argued that counsel should be required to discuss with his client the consequences of his actions during the no-merit procedure, and not merely of his rights.

David Ziemer can be reached at david.ziemer@wislawjournal.com.

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