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Habeas Corpus — ineffective assistance

United States Court of Appeals For the Seventh Circuit

Criminal

Habeas Corpus — ineffective assistance

Even if it was deficient for a state prisoner’s attorney not to have moved to narrow the time frame for the offense, it was not unreasonable for the state courts to find the deficiency was not prejudicial.

“McElvaney first argues that the cursory treatment the Wisconsin Court of Appeals gave his claim was ‘unreasonable’ under Strickland. According to McElvaney, the Wisconsin Court of Appeals was ‘unreasonable’ in ‘requiring him to prove his ability to present an alibi defense’ and in denying him an evidentiary hearing, which prevented the court from ‘fully considering his claim under Strickland.’ But the Court of Appeals did not require McElvaney to ‘prove’ an alibi defense; rather, it affirmed the denial of postconviction relief without an evidentiary hearing because McElvaney failed to allege any facts regarding a possible alibi defense. The Court of Appeals noted that the same Wisconsin case McElvaney relied upon in support of his ineffectiveness argument—State v. Fawcett—states that a complaint need not be dismissed for lack of specificity whenever ‘a defendant indicates a desire to assert an alibi defense[.]’ 426 N.W.2d at 96 n.3. Thus, the Court of Appeals concluded that given Fawcett and his conclusory allegations, McElvaney had not established that a motion to dismiss the complaint would have had a reasonable probability of success. Similarly, trial counsel’s failure to seek a more specific date-range may have been reasonable and, in any event, was not prejudicial because McElvaney had not alleged facts showing that the alibi defense he was ‘prevented from preparing’ was anything more than a hypothetical. The Court of Appeals therefore concluded that McElvaney’s ineffective assistance of counsel claims failed because he had not established that his trial counsel’s (as well as his appellate counsel’s) performance was deficient or prejudicial. We do not think this determination was ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’ Harrington, 131 S.Ct. at 786–87.”

Affirmed.

12-2357 McElvaney v. Pollard

Appeal from the United States District Court for the Eastern District of Wisconsin, Callahan, Mag. J., Bauer, J.


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