09-1032 Kerr v. Thurmer

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CRIMINAL OPINIONS
Habeas Corpus
Ineffective assistance; plea bargaining

Where a state prisoner claims he would have accepted a plea agreement if his attorney had correctly conveyed it to him, and no evidentiary hearing was held, the district court should have held a hearing on the prisoner’s ineffective assistance claim.

“When a petitioner fails to develop the factual basis of a claim in state court, AEDPA normally prevents federal courts from holding an evidentiary hearing to supplement the record. See 28 U.S.C. ß 2254(e)(2); Williams, 529 U.S. at 430; Boyke v. Parke, 259 F.3d 781, 789-92 (7th Cir. 2001).

“But this bar is lifted if the applicant can show ‘a factual predicate that could not have been previously discovered through the exercise of due diligence.’ 28 U.S.C. ß 2254(e)(2)(A)(ii).

“In his motion for state postconviction relief, Kerr asserted that his lawyers gave him incorrect advice about the plea offered by the state, and he requested a Machner hearing — a hearing provided by Wisconsin state courts so that prisoners can preserve the testimony of their trial lawyers for ineffective assistance of counsel claims.

“See generally Ward, 613 F.3d at 695-96. But the state trial court denied his request for a hearing, in part because Kerr’s ‘claims against his attorneys are merely conclusory or underdeveloped . . . .’ In fact, no state or federal court has ever held an evidentiary hearing, and so the factual basis of Kerr’s allegation that the district attorney offered to let him plead guilty to first-degree reckless homicide is entirely undeveloped.

“It is difficult in these circumstances to say that Kerr was not diligent enough in developing his claim. See Ward, 613 F.3d at 697-99; Davis v. Lambert, 388 F.3d 1052, 1060-62 (7th Cir. 2004). Kerr similarly cannot be accused of being less than diligent when the missing factual information critical to this case — the basis of the plea agreement — is missing because Kerr’s lawyers failed to record it in any way and failed even to inform Kerr what deal was offered in their later letter, which has made it into the record.”

Vacated and Remanded.
09-1032 Kerr v. Thurmer
Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Wood, J.

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