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SCOW will address confusion created by Starks

State ex rel. Milton Eugene Warren v. Michael Meisner, 2019AP567-W, petition for review granted 10/16/19; case activity

Issue (composed by On Point based on the petition for review)

Whether under State v. Starks, 2013 WI 69, Warren’s § 974.06 postconviction motion alleging ineffective assistance of counsel by the lawyer appointed on direct appeal should be heard in the circuit court or the Court of Appeals.

The issue presented involves a subtle but important rule governing the forum for raising claims of ineffective assistance of postconviction counsel. As explained hereStarks created confusion by appearing to alter the previously well-established rule; then, as explained here, the court declined to reconsider its decision, despite requests by both Starks and the state to correct the confusion, which disproportionately affects indigent, pro se, inmate litigants. By accepting review in this case, it appears the court will finally address what Starks wrought.

Warren’s case illustrates the problem created by Starks. Warren had a direct appeal under § 809.30. His lawyer decided not to file a § 809.30 postconviction motion; instead, he went straight to the court of appeals and argued sufficiency and a preserved issue. Warren’s conviction was affirmed. Thereafter, he filed a § 974.06 postconviction in the circuit court, alleging the lawyer in his direct appeal was ineffective for failing to file a § 809.30 postconviction motion raising an ineffective claim against trial counsel. This was the proper place for him to file the motion under State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996), which held that the circuit court was the proper forum for ineffective assistance of counsel claims based on acts or omissions by counsel at the postconviction (that is, pre-notice of appeal) stage of § 809.30.

Starks appeared to undo Rothering‘s rule. It said, without attention to or even acknowledgement of Rothering (or its own endorsement of that decision in State v. Balliette, 2011 WI 79, ¶32, 336 Wis. 2d 358, 805 N.W.2d 334), that if there was no § 809.30 postconviction proceeding, but only a § 809.30 appeal, then claims of ineffective assistance of counsel against the § 809.30 lawyer should not be brought in the circuit court, but in the court of appeals, using the habeas procedure adopted in State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992), to address claims of ineffectiveness of counsel in handling an appeal.

So, relying on Starks, the circuit court denied Warren’s motion, telling him he should file a habeas in the court of appeals. But when Warren did that, the court of appeals dismissed his petition, telling him his remedy was to appeal from the circuit court’s denial of his § 974.06 motion. Caught in this Starks-esque Catch-22, Warren turned to the supreme court, which will now tell us whether the court really intended to abandon the Rothering rule and, if so, why, and what it’s replaced with—all things the court could and should have said in Starks itself, or upon reconsideration, but, alas, did not.

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