Taking a cue from Napolean Bonaparte, the Wisconsin Supreme Court just denied two, year-old reconsideration motions outlining many serious mistakes in the Starks majority opinion (written by Justice Gableman). No, that statement is not just sour grapes. The Attorney General also asked for reconsideration along the same lines as the defense. The Chief Justice took the extraordinary step of attaching both motions to her concurrence.
Attorney Rob Henak, who wrote the defense reconsideration motion pro bono (thank you, Rob), did a guest post about Starks for On Point. Read his full analysis here. Suffice it to say that Starks adopted the “clearly stronger” pleading standard for claims of ineffective assistance of appellate counsel. But in its tour of Wisconsin postconviction and appeal procedure the majority veered off course and, as the Attorney General, concedes “creat[ed] the potential to confuse litigants, bench and bar.” (State’s motion at 2). The errors include:
Paragraph 41 of Starks suggests that a defendant must exhaust his direct appeal remedies before filing a §974.06 motion. That is not true. See State v. Balliette, 2011 WI 79, ¶46. In fact, ¶41 relies on an old decision that §974.06 itself modified. See Peterson v. State, 54 Wis. 2d 370, 381, 195 N.W.2d 837 (1972).
Numerous paragraphs in Starks make the mistake of suggesting that a failure to file a postconviction motion the circuit court is an error of appellate counsel. That’s sure not what State ex rel Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996) holds. Yet Starks did not overrule Rothering.
So what are judges, lawyers and pro se litigants (frequent filers of collateral attacks) supposed to do? The Chief says the most sensible course of action is for SCOW to issue a per curiam modification of Starks in response to these reconsideration motions rather than try fix the mistakes piecemeal in cases like Kyles v. Pollard and State v. Romero-Georgana. Concurrence, ¶7.
Special thanks to AAG Sarah Larson. She could have rested on her victory in Starks, but instead she helped try to clean it up.