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Criminal Procedure — habeas corpus

By: WISCONSIN LAW JOURNAL STAFF//January 20, 2014//

Criminal Procedure — habeas corpus

By: WISCONSIN LAW JOURNAL STAFF//January 20, 2014//

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United States Court of Appeals For the Seventh Circuit

Criminal

Criminal Procedure — habeas corpus

Where the state courts advised a prisoner how to remedy his attorney’s failure to file a notice of intent to seek postconviction relief, but he did not do so, he cannot seek habeas corpus in federal court.

“Martinez and Trevino do not directly call the district court’s decision into question. In Martinez and Trevino, the Supreme Court held that procedural default caused by ineffective postconviction counsel may be excused if state law, either expressly or in practice, confines claims of trial counsel’s ineffectiveness exclusively to collateral review. Trevino, 133 S. Ct. at 1921; Martinez, 132 S. Ct. at 1315. Wisconsin law expressly allows—indeed, in most cases requires—defendants to raise claims of ineffective assistance of trial counsel as part of a consolidated and counseled direct appeal, and provides an opportunity to develop an expanded record. See Evans, 682 N.W.2d at 793–94. True, Nash’s trial counsel neglected to file the notice of intent to mount such a challenge. But as we have explained, Wisconsin provides a procedure through which Nash easily could have remedied counsel’s omission and started the plenary postconviction process anew. See WIS. STAT. § 809.82(2)(a); Walker, 716 N.W.2d at 505–06; Evans, 682 N.W.2d at 793–94. Indeed, the circuit court specifically told him how to avail himself of this process, but Nash did not do so.”

Affirmed.

12-1786 Nash v. Hepp 

Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Sykes, J.

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