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Ineffective assistance claim denied

In two decisions this year, the U.S. Supreme Court made it tougher for state prisoners to obtain habeas corpus relief in federal court.

Just how hard it is to get relief is apparent in an April 18 opinion from the 7th Circuit. The court implied that it felt a Wisconsin prisoner should get a new trial, but affirmed the denial of his petition nonetheless.

The case arose in 1991, when Albert J. Price struck a pedestrian while driving his truck, caused a four-car accident, exited his truck wielding a machete and injured three passersby.

At issue at trial was whether he was not guilty by reason of insanity, or voluntarily intoxicated.

Three experts testified: The state’s expert said he was intoxicated; Price’s expert said he was insane; and the expert appointed by the court said he was unable to form an opinion.

The jury found him guilty, and he was sentenced to 185 years in prison. His appeal in state court dragged on for years and ultimately, the Wisconsin Court of Appeals held that Price’s counsel was not ineffective, though he failed to provide the court’s expert with evidence that Price had been behaving bizarrely for weeks before the incident and another expert retained by Price for the hearing testified that it was “not even a close call” that Price’s behavior was the result of mental illness.

Price sought relief in federal court, but the district court denied his petition. On appeal, the 7th Circuit remanded the case for an evidentiary hearing in 2008, finding that the Wisconsin Court of Appeals’ opinion was too inadequate to determine the adequacy of Price’s trial counsel. 514 F.3d 729 (7th Cir. 2008).

The district court conducted the evidentiary hearing on whether Price’s trial counsel was ineffective, but again denied relief.

The 7th Circuit reluctantly affirmed in an opinion by Judge Richard Posner.

The court began by acknowledging that it exceeded its authority by ordering the evidentiary hearing in the first appeal by Price.

In Cullen v. Pinholster, 2011 WL 1225705 (Apr. 4, 2011), the Supreme Court held that a district court may not take evidence in a habeas corpus proceeding based on 28 U.S.C. 2254(d)(1): “evidence introduced in federal court has no bearing on sec. 2254(d)(1) review. If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of sec. 2254(d)(1) on the record that was before that state court.”

The 7th Circuit admitted, “In light of that decision we should not have ordered such a hearing insofar as Price was seeking relief under section 2254(d)(1).”

Subsec. (d)(1) permits relief if the state court unreasonably applied clearly established federal law.

The court recognized the possibility that an evidentiary hearing could be ordered if relief is sought under sec. 2254(d)(2) — the prisoner claims that the state court unreasonably determined the facts. But the court found that the statute “appears to leave little or no room for an evidentiary hearing,” even then.

Turning to the merits, the court concluded that, even though Price’s attorney was ineffective, it was not unreasonable for the Wisconsin courts to conclude that Price was not prejudiced.

The court said, “as an original matter, we would be inclined to rule that Price had been prejudiced by his lawyer’s lapses.”

But in light of another recent opinion from the U.S. Supreme Court, Harrington v. Richter, 131 S.Ct. 770 (2011), the court concluded it could not.

The Supreme Court held in Harrington that a state prisoner can prevail in a federal habeas corpus proceeding only if “there is no possibility fair-minded jurists could disagree that the state court’s decision conflicts with this Court’s precedents. … [The] prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.”

Applying this standard, the court concluded that it was precluded from granting habeas corpus relief, even though the Wisconsin Court of Appeals “ignored a good deal of the evidence.”

The court concluded, “We cannot say that it was ‘unreasonable’ for the Wisconsin court to infer from the evidence presented to it that [the court’s expert] would not have changed his testimony had he read the reports, especially since the eye-witnesses were all friends of Price and so might not seem credible.”

The court added, “We might disagree with the Wisconsin court, but we would not have the strength of conviction that would enable us to declare its conclusion unreasonable.”


The U.S. Supreme Court opinion in Cullen, and the 7th Circuit’s opinion in this case, don’t entirely foreclose district courts from holding evidentiary hearings on petitions from state prisoners.

A hearing can still be held pursuant to 28 U.S.C. 2254(e), if no state court has considered the claim in a hearing of its own.

This was the situation in the recent case of Kerr v. Thurmer, No. 09-1032.

Like Price, Kerr claimed ineffective assistance of counsel. But unlike Price, he was not granted a hearing on his allegations. In federal district court, he was also denied an evidentiary hearing.

But the 7th Circuit vacated that order, because no court had yet held any hearing on whether Kerr received incorrect advice from his attorney, and remanded the case to the district court to hold a hearing on that issue.

When there has been no hearing in state court, and it is not the result of lack of diligence on the prisoner’s part, a hearing can still be held in federal court, notwithstanding Cullen and this opinion.

What the Court Held

Case: Price v. Thurmer, No. 09-3851

Issue: Did the state court unreasonably hold that a state prisoner was not prejudiced by his counsel’s deficient performance?

Holding: No. Given the high standard of review, the state court’s ruling was not unreasonable.

Attorneys: For Petitioner: Daniel J. Weiss, Mequon; For Respondent: Aaron R. O’Neil, Madison

David Ziemer can be reached at

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