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No hearing on ineffective assistance claim for failure to investigate misconduct claims against sheriff

State v. Alice M. Fischer, 2018AP422-CR, 9/18/18, District 1 (1-judge opinion, ineligible for publication); case activity

This case may sound vaguely familiar. Trial counsel failed to investigate and make use of a claim against a sheriff’s sergeant, Matthew Paradise, the defendant in a civil rights action alleging that he and others conspired to create inaccurate reports leading to a false drunk driving charge against one Tanya Weyker. Turns out Paradise also stopped Fischer for OWI and testified at her trial. District 1 addressed a similar situation in in State v. Raynard Jackson, 2007AP2186 (per curiam), where it reversed a decision denying the IAC claim without a Machner hearing. Here District 1 affirms the denial of a hearing.

Fischer was convicted of OWI and operating with a PAC, both 3rd offenses.  Multiple witnesses testified at trial, but Fischer was concerned about Paradise, who was also one of several defendants in the civil rights action mentioned above. She raised this Paradise’s credibility with her lawyer. He did nothing, so postconviction counsel filed an ineffective assistance claim arguing that trial counsel could have investigated and used this evidence to impeach Paradise. The court of appeals held that Fischer didn’t deserve a hearing on her claim because she failed to prove the allegations of in the civil rights action.

¶20 In this case, Fischer’s motion did not provide any additional information regarding her claim that if trial counsel investigated Paradise’s background, she would have obtained impeachment evidence. Fischer does not identify any witness who would testify that Paradise was involved in a cover-up in 2013 that resulted in the false drunk driving allegation against Weyker. The remainder of Fischer’s motion summarizes arguments that she alleges were made in Weyker’s civil rights action; however, arguments are not facts. Fischer’s motion does not disclose whether any of the allegations against Paradise were proved during the litigation process, the outcome of the litigation, or any evidence relating to this claim (the what, where, and when). As succinctly stated by the postconviction court, the mere fact that someone else made an allegation in a civil rights lawsuit is not admissible impeachment evidence. Further, Fischer failed to specify what admissible facts she believes trial counsel should have uncovered in order to impeach Paradise. We agree.

Guess what? A quick check on PACER indicates that the civil rights action against Paradise & Co ended in stipulated relief, including attorneys fees for the plaintiff. Now consider Jackson. He was found guilty of possessing a firearm as a felon. While his postconviction motion was pending the officer who apprehended him was charged with threatening to plant evidence on a suspect. The court of appeals also released a decision granting a new trial based on similar accusations against the same officer. Fischer and Jackson are not identical, but they are similar. Jackson received a Machner hearing on his IAC claim. Fischer did not.

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