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Failure to Appoint Counsel- Habeas Relief

By: WISCONSIN LAW JOURNAL STAFF//May 2, 2023//

Failure to Appoint Counsel- Habeas Relief

By: WISCONSIN LAW JOURNAL STAFF//May 2, 2023//

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7th Circuit Court of Appeals

Case Name: Nelson Garcia, Jr. v. Randall Hepp

Case No.: 21-3268

Officials: Scudder, St. Eve, and Kirsch, Circuit Judges.

Focus: Failure to Appoint Counsel- Habeas Relief

Wisconsin police officers placed Garcia in a lineup after a court commissioner found probable cause for his arrest and set bail. Garcia did not have counsel at the lineup. State prosecutors used the ensuing eyewitness identification against Garcia in his trial for bank robbery. The Wisconsin Court of Appeals affirmed Garcia’s conviction, determining that the state’s failure to appoint counsel before the lineup did not violate his Sixth Amendment rights because the right to counsel had not yet attached. Garcia then sought federal habeas corpus relief under 28 U.S.C. § 2254, which the district court granted.

Narrow access to habeas relief does not mean unavailable. The Wisconsin Court of Appeals’ resolution of Garcia’s Sixth Amendment right-to-counsel claim falls within the narrow class of objectively unreasonable state court decisions warranting habeas relief. Even affording the Wisconsin Court of Appeals the vast deference owed by § 2254(d)(1), the Seventh Circuit sees no reasonable way of squaring its decision with the Supreme Court’s long line of cases on the attachment of a defendant’s right to counsel, including most recently in Rothgery v. Gillespie County, 554 U.S. 191 (2008). The circuit court therefore affirms the district court’s grant of habeas relief based on Garcia’s Sixth Amendment right-to-counsel claim.

Affirmed

Decided 04/25/23

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