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Criminal Procedure – Ineffective assistance

By: WISCONSIN LAW JOURNAL STAFF//September 16, 2011//

Criminal Procedure – Ineffective assistance

By: WISCONSIN LAW JOURNAL STAFF//September 16, 2011//

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Criminal Procedure
Ineffective assistance

It was error to dismiss a prisoner’s habeas corpus petition alleging that his attorneys failed to file a notice of appeal, without a hearing.

“Ryan clearly alleged a violation of his right to appeal by counsel. Having adequately alleged a constitutional violation, the only other question to ask is whether Ryan had personal knowledge of the facts underlying his claim and, if so, whether anything made the allegations ‘palpably incredible’ or discovery otherwise pointless. Machibroda v. United States, 368 U.S. 487, 495 (1962); Lafuente v. United States, 617 F.3d 944, 946 (7th Cir. 2010); see also Mahaffey v. Ramos, 588 F.3d 1142, 1145 (7th Cir. 2009) (discussing pleading standards in habeas corpus cases), cert. denied, 130 S. Ct. 3503 (2010); Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006) (recognizing that a movant’s ‘verified statement alone’ can count as evidence to support claims); Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001) (noting that 28 U.S.C. § 2255(b) allows the court to forgo a hearing if the papers before it ‘conclusively show’ that the prisoner is entitled to no relief). Here, the record clearly shows that no notice of appeal was filed, and Ryan would know whether and when he asked counsel to file an appeal. Moreover, there is nothing incredible about his allegations, nor is there confusion about the other evidence Ryan may need (such as an affidavit or oral testimony from counsel).”

Vacated and Remanded.

10-2564 Ryan v. U.S.

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Bauer, J.

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