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Postconviction proceedings: right to counsel/ineffective assistance of counsel

State v. Ouati K. Ali, 2011AP2169, District 4, 11/1/12

court of appeals decision (not recommended for publication); case activity

Postconviction Proceedings – Right to Counsel 

A defendant has no constitutional right to counsel outside the direct appeal period, therefore Ali’s argument that failure to appoint counsel counsel to pursue DNA testing deprived him of due process is a non-starter.

¶12      Ali does not claim that the public defender erroneously exercised its discretion in declining to appoint him counsel for the purpose of pursuing his motion for postconviction DNA testing.  He claims instead that the denial of appointed counsel denied him his constitutional right to due process.  Wisconsin, however, does not recognize a constitutional right to an attorney in state postconviction proceedings beyond a defendant’s first appeal of right.  See State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 648-51, 579 N.W.2d 698 (1998).  “‘[T]he right to appointed counsel extends to the first appeal of right, and no further.’”  Id. at 648 (quoting Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Thus, Ali did not have the constitutional right to appointed counsel for purposes of his Wis. Stat. § 974.06 postconviction motion and the refusal to appoint him counsel was not a violation of his due process rights

As the court points out, ¶¶10-11, the SPD has discretion to appoint counsel outside the direct-appeal process, see State v. Alston, 92 Wis. 2d 893, 896, 288 N.W.2d 866 (Ct. App. 1979), but as indicated above, the exercise of that discretion isn’t at issue here.

Postconviction Motion – DNA Testing, § 974.07 

The circuit court properly denied Ali’s motion for DNA testing, in that he failed to show a reasonable likelihood of more accurate and probative results, ¶¶19-23, applying State v. Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884.

¶22      Ali asserts that the MiniSTR DNA testing procedure which Orchid Cellmark Laboratory would use to test the evidence is “particularly good at testing degraded samples as compared to the Powerplex test that was originally used by the police.”  Ali also asserted that the new test would “possibly provide a more accurate picture of how the stain was created.”

¶23      Ali has not directed this court to any evidence in the record indicating that the evidence he sought to retest was degraded.  He also has not made a showing that there is a reasonable likelihood that the new test would provide a more accurate and probative result.  Accordingly, we conclude that Ali has not established that the evidence meets all of conditions under Wis. Stat. § 974.07(2).

Per Moran, a litigant who. like Ali, seeks testing at his own expense, need not show a reasonable likelihood he wouldn’t have been prosecuted or convicted, ¶19.

 Postconviction Motion, § 974.06 – Ineffective Assistance – Failure to File Recusal Request 

Trial counsel didn’t perform deficiently in failing to file a recusal motion based on the fact that the presiding judge’s wife (a prosecutor) taped a pretrial interview with the victim.

¶30      In State v. Harrell, 199 Wis. 2d 654, 546 N.W.2d 115, the supreme court addressed under what circumstances a circuit court judge whose spouse is an assistant district attorney in the same county is required to disqualify himself or herself under Wis. Stat. § 757.19(2)(a).  The court held that § 757.19(2)(a) does not “require[] a judge to disqualify himself or herself in such a situation as long as his or her spouse did not participate in, or help prepare, the case.”  Id. at 657.  Similar to the present case, Harrell concerned whether Judge DeChambeau was obligated to recuse himself under § 757.19(2)(a) because of his wife’s relationship with the district attorney’s office.   The court in Harrell stated that the record was clear that Judge DeChambeau’s spouse neither appeared in the case nor involved herself in the preparation of the case and consequently, their relationship did “not fall within the scope of Wis. Stat. § 757.19(2)(a).”  Id. at 663.

¶31      Here, the record indicates only that Attorney Hayward was present at the time the victim gave her recorded interview at the Safe Harbor.  As pointed out by the State, “[t]here is nothing in the record to suggest that [Assistant District Attorney] Hayward was anything more than an observer at the Safe Harbor interview.”  Because there is no indication in the record that Attorney Hayward appeared before Judge DeChambeau in this case, or that she involved herself in the actual preparation of the case, we conclude that the relationship between Judge DeChambeau and Attorney Hayward did not fall within the scope of Wis. Stat. § 757.19(2)(a).   Consequently, Ali’s trial counsel was not deficient in failing to request that Judge DeChambeau recuse himself, and appellate counsel was not deficient in failing to raise this argument on appeal or in a postconviction motion.

The court also dispatches a separate IAC claim, premised on appellate counsel’s failure to raise sufficiency of the evidence to support conviction for sexual assault of a child, given the victim’s testimony that she did have intercourse with Ali, ¶¶32-36.

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