Habeas Corpus — ineffective assistance

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United States Court of Appeals For the Seventh Circuit

Criminal

Habeas Corpus — ineffective assistance

Where a prisoner’s state court attorney failed to raise a clearly meritorious issue, he is entitled to a new appeal in state court.

“The bottom line is that attorney Miller was faced with two potential arguments, one undeniably frivolous and the other solidly based on a state statute and reinforced by the Indiana Supreme Court’s pronouncement in Haak. In the face of this choice, Miller opted for the hopeless sufficiency challenge. The record reveals no strategic reason for his choice of arguments, and in any case ‘[n]o tactical reason . . . can be assigned for [his] failure to raise the only substantial claim[] that’ Shaw had. See Fagan, 942 F.2d 1155 at 1157; cf. Smith v. Murray, 477 U.S. 527 (1986) (concluding that appellate counsel who did not raise a claim that was questionable under Virginia law but did raise 13 more-promising claims was not deficient). Fairminded jurists who have the proper standard in mind can conclude only that Miller’s performance fell short of what Strickland v. Washington and Smith v. Robbins require, and that the Indiana appellate court’s conclusion to the contrary was an unreasonable application of Supreme Court precedent.”

Vacated and Remanded.

12-1628 Shaw v. Wilson

Appeal from the United States District Court for the Southern District of Indiana, Magnus-Stinson, J., Wood, J.