On Point

State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶21      The second component, the objective test, asks whether a reasonable person could question the judge’s impartiality. Franklin, 398 F.3d at 960; Walberg, 109 Wis. 2d at 106-07 (looks to whether partiality can “reasonably be questioned”). Actual bias on the part of the decision maker certainly meets this objective test. In re Murchison, 349 U.S. 133, 136 (1955); Franklin, 398 F.3d at 960-61. Sometimes, however, the appearance of partiality can also offend due process ….

¶22      We have reviewed numerous cases, both state and federal, that discuss these two aspects of objective bias. Initially, we had a difficult time discerning from them whether actual bias was necessary or merely sufficient. …

¶23      Further examination, however, reveals that this divergent case law can be harmonized. …

¶24      … In short, the appearance of bias offends constitutional due process principles whenever a reasonable person—taking into consideration human psychological tendencies and weaknesses—concludes that the average judge could not be trusted to “hold the balance nice, clear and true” under all the circumstances.

Compare this, not necessarily inconsistent synthesis from People v. Freeman, 147 Cal.App.4th 517 (Cal App 2007): “These federal and California decisions reflect that there may be situations where the appearance of judicial bias is sufficiently elevated so as to invoke constitutional due process rights. Thus, judicial bias may implicate constitutional due process not only when it is based on actual bias, but also when it involves an appearance of bias that could undermine the public’s confidence in a fair judiciary.”

State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate

Issue: Whether a judge’s instruction to a probation agent, who asked that probation not be extended, “No—I want his probation extended,” evinced judicial bias so as to taint the judge’s subsequent extension order.

Holding: While the judge’s comment did not establish “actual bias” (“given our experience and the reputation of this particular trial judge as a fair and just administrator of the law”), ¶25, it nonetheless created an appearance of partiality:

¶26      The appearance of partiality, however, remains problematic. We must resolve this case based on what a reasonable person would conclude from reading the court’s notation, id. at 960, not what a reasonable trial judge, a reasonable appellate judge, or even a reasonable legal practitioner would conclude. The court here used strong language. “ I want his probation extended.” (Emphasis added.) “Want” signifies a personal desire on the court’s part. Of additional significance, this expressed desire refers not to an extension hearing—at which to decide the merits of extension versus a civil judgment—but to the extension itself, an ultimate outcome. Neutral and disinterested tribunals do not “want” any particular outcome. Moreover, a reasonable person familiar with human nature knows that average individuals sitting as judges would probably follow their inclination to rule consistent with rather than against their personal desires. The ordinary reasonable person would discern a great risk that the trial court in this case had already made up its mind to extend probation long before the extension hearing took place. Further, nothing in the transcript of the extension hearing would dispel these concerns. We therefore agree with Gudgeon that the extension hearing violated his due process right to an impartial tribunal.

(See also ¶30: “Although we may be convinced that the circuit court was not prejudging the extension issue,  that is not the test. The risk of bias that the ordinary reasonable person would discern—which is the test—is simply too great to comport with constitutional due process.”)

No comment on the court’s actual-bias analysis. Application of “ordinary reasonable person” to appearance of bias is notable; see, for example, this iteration of the test, State v. Pablo Cruz Santana, 220 Wis. 2d 674, 584 N.W.2d 151 (Ct. App. 1998):

Judicial disqualification under § 757.19(2)(g), Stats., concerns not an outsider’s objective determination, but rather the judge’s subjective determination. See State v. American TV & Appliance, 151 Wis.2d 175, 182, 443 N.W.2d 662, 665 (1989). It mandates a judge’s disqualification “ only when that judge makes a determination that, in fact or in appearance, he or she cannot act in an impartial manner.” Id. at 183, 443 N.W.2d at 665 (emphasis added). Disqualification is not required in a situation where “ one other than the judge objectively believes there is an appearance that the judge is unable to act in an impartial manner ….” Id. (emphasis added). This holding was reaffirmed more recently in State v. Harrell, 199 Wis.2d 654, 658, 546 N.W.2d 115, 117 (1996), when the supreme court stated: “Whether the general subjective situation exists and requires disqualification, however, is based upon the judge’s own determination of whether he or she may remain impartial.” Appellate review of such a determination is “limited to establishing whether the judge made a determination requiring disqualification.” Id. at 663-64, 546 N.W.2d at 119 (quoted source omitted).

Santana, to be sure,was discussing the disqualification statute, § 757.19(2)(g): why in light of Gudgeon would anyone now want to invoke the statute when it is narrower (as to appearance of bias) than the constitutional argument? For that matter, is it possible to say that the statute is unconstitutional precisely because it is narrower than the constitutional test? On the other hand, State v. Rochelt, 165 Wis. 2d 373, 378-81, 477 N.W.2d 659 (Ct. App. 1991) makes a couple of pertinent points: the statutory test is different from the constitutional test, fn. 1—though the court doesn’t say precisely how, it is now clear that for the latter the metric is how a reasonable person would view the situation and for the former it is a reasonable judge; and, “the appearance of possible prejudgment of the defendant’s guilt” establishes judicial partiality—a principle ratified in the more general sense of prejudgment of an issue in controversy by Gudgeon and  Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2005). So, perhaps Gudgeon represents clarification rather than a change in caselaw. (Note, too, that Rochelt goes on to apply a harmless error test despite the existence of judicial bias, something that is now precluded byFranklin.

State v. Tomas Payano-Roman, 2006 WI 47, reversing 2005 WI App 118
For Payano-Roman: Timothy A. Provis

Issue: Whether the administration to an arrestee of a laxative at a hospital was under 4^th amendment constraints because of the involvement of the police (including keeping the defendant handcuffed in the hospital room; police administration of the laxative; their palpable goal to recover a controlled substance that the defendant had swallowed).

Holding:

¶28      Taking all of these circumstances into account, we determine that Payano-Roman established by a preponderance of the evidence that the search meets the test for a government search. The totality of the facts shows that the officers and medical personnel were engaged in a joint endeavor to speed the passage of the baggie of drugs through Payano-Roman’s system. The administration of the laxative had a dual purpose, medical treatment and the recovery of evidence of a crime. ^[6] Moreover, Agent Parker directly participated in the administration of the laxative to Payano-Roman. This is not a case involving the “mere presence” of a police officer.

¶29      There can be no question on this record that one purpose of the laxative procedure was medical treatment. However, when we consider all the circumstances of this case, we conclude that the medical purpose of the procedure cannot insulate the simultaneous evidence-gathering purpose from Fourth Amendment scrutiny.

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^[6]  Cf. State v. Jenkins, 80 Wis. 2d 426, 433-34, 259 N.W.2d 109 (1977) (holding that where a blood test is taken at the request of a physician “solely” for diagnostic purposes, there is no search and seizure within the meaning of the Fourth Amendment).

State v. Tomas Payano-Roman, 2006 WI 47, reversing 2005 WI App 118
For Payano-Roman: Timothy A. Provis

Issue/Holding:

¶17      … Private searches are not subject to the Fourth Amendment’s protections because the Fourth Amendment applies only to government action. State v. Rogers, 148 Wis.  2d 243, 246, 435 N.W.2d 275 (Ct. App. 1988) ….¶18      The court of appeals in Rogers stated three requirements that must be met for a search to be a private search:

(1) the police may not initiate, encourage or participate in the private entity’s search; (2) the private entity must engage in the activity to further its own ends or purpose; and (3) the private entity must not conduct the search for the purpose of assisting governmental efforts.

Rogers, 148 Wis.  2d at 246.

¶19      Similarly, a search may be deemed a government search when it is a “joint endeavor” between private and government actors ….

¶20      At the same time, however, the mere presence of a government official will not necessarily transform a private search into government action. …

…

¶23      We agree with the State that Payano-Roman had the burden of proof. Once the State raises the issue, asserting that a search is a private search, the defendant has the burden of proving by a preponderance of the evidence that government involvement in a search or seizure brought it within the protections of the Fourth Amendment. …

¶24      However, the circuit court’s determination of whether the search was a private search or a government search is not a finding of evidentiary or historical fact. Rather, it is ultimately a question of law subject to independent appellate review. …

State ex rel. Luis Santana v. Endicott, 2006 WI App 13
Pro se

Issue/Holding¹: A claim that lapsed direct appeal rights should be restored on the basis of ineffective assistance of counsel must be sought via habeas filed in the court of appeals, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992):

¶1        … Although Santana may seek habeas relief on his ineffective assistance claim, he started in the wrong forum.  His petition faults appointed counsel for failure to pursue an appeal. State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 797-99, 565 N.W.2d 805 (Ct. App. 1997), unequivocally requires defendants to raise this type of ineffective assistance claim in a Knight ^[2] petition to this court. That said, we emphasize that the dismissal below is without prejudice and that Santana may still file a Knight petition.

…

¶4        … Santana complains that counsel failed to file a no merit appeal or to move for postconviction relief.  Rule 809.32 governs no merit appeals. Had counsel moved for postconviction relief, he would have done so pursuant to Wis. Stat. § 974.02, which is governed by the procedural rules in Rule 809.30. See § 974.02(1); Evans, 273 Wis. 2d 192, ¶29 (such a motion may precede or substitute for a notice of appeal and may be a prerequisite to direct appeal depending on whether the issues argued were previously raised). Thus, Santana should have brought a Knight petition to this court.

¶5        The State, citing Smalley, 211 Wis. 2d at 798-99, and Ford, 269 Wis. 2d 810, ¶¶36-37, observes that although this court accepts habeas petitions where appellate counsel is ineffective, we often remand to the trial court for fact finding and opines that “[i]t reasonably follows … that a trial court should be able to address a loss-of-direct-appeal claim in the first instance.” We disagree with the State’s suggestion that Smalley prescribes an optional procedure. …

¶6        Although we affirm the circuit court’s order dismissing Santana’s petition, we emphasize that he remains free to pursue the proper procedure by filing a Knight petition in this court. …

More than a little fussy, no? Not so much the abstract principle—court of appeals is exclusive forum to resolve Knight claim—but the result on these facts. The claim is in the court of appeals. Why can’t they just (liberally) construe the appeal to be a Knightpetition, consistent with the idea that pro se claims are liberally construed so as to overcome technical defects? Santana will simply turn around, file the petition with the court of appeals, and they’ll have to review it anyway.

Issue/Holding²:

¶9        As for what does belong in the Knight petition, we observe that the procedures in Wis. Stat. Rule 809.51 apply. The petition should contain a statement of the issues and facts of controversy, the relief sought, and reasons why we should take jurisdiction. See Rule 809.51(1)(a)-(d); Smalley, 211 Wis. 2d 795 & n.7. The statement of facts should identify precisely what counsel did or failed to do. We note that the issue of waiver will also probably arise.  The State has posited that Santana waived his right to bring a loss-of-direct-appeal claim by waiting seven and one-half years to seek relief. Habeas relief is an equitable remedy subject to the doctrine of laches. Smalley, 211 Wis. 2d at 800. Santana should be prepared to address the State’s claim and to provide a factual basis for his delay. See id. at 802 (petition must allege facts demonstrating that the defendant sought prompt and speedy relief). ^[3]

¶10      Additionally, the petition must comply with the requirements of Wis. Stat. § 782.04.  … We wish in particular to emphasize the verification requirement, which many prisoners overlook. Verification entails signing the document in the presence of a notary public. See Kellner v. Christian, 197 Wis. 2d 183, 188-89, 539 N.W.2d 685 (1995). The verification requirement assures “that the statements contained therein are presented with some regard to considerations of truthfulness, accuracy and good faith,” and petitions not properly verified do not meet the requirements for a valid application. Maier v. Byrnes, 121 Wis. 2d 258, 262-63, 358 N.W.2d 833 (Ct. App. 1984).

What’s with the incorporation of statutory habeas procedure, § 782.04? Habeas is a common law as well as statutory procedure, State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, ¶6, 593 N.W.2d 48, and a Knight petition is a common law mechanism. Nothing wrong, of course, with requiring that a habeas petition filed in the court of appeals comply with Rule 809.51, but compliance with § 782.04 (statutory habeas) is deeply problematic—not least because statutory habeas may be filed in anycourt, supreme court, court of appeals, and circuit court, § 782.03. The court just got done telling us that a Knight habeas can’t be filed in circuit court, so how can it justify incorporating a procedure which applies to circuit court?Note as well the court’s recognition that if Santana has a constitutional or jurisdictional issue, he may raise it with a § 974.06 motion (¶¶8, 11) – with no mention made, by the way, of State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). What this suggests, albeit obliquely, is that the E-N serial litigation bar simply does not apply where there has been no prior litigation. On this point, see State v. Anou Lo, 2003 WI 107, ¶44 n. 11 (“Our ruling would only be applicable in the situation where a criminal defendant actually filed a § 974.02 motion or pursued a direct appeal. Therefore, in Loop v. State, 65 Wis.  2d 499, 222 N.W.2d 694 (1974), where the defendant filed a § 974.06 motion challenging his conviction without having previously filed a § 974.02 motion or pursued a direct appeal, he was permitted to raise a constitutional issue not raised on direct appeal because no direct appeal had been sought. We agree with this analysis.”).

Dennis Thompson, Jr. v. Battaglia, 458 F. 3d 614 (7th Cir. No. 04-3110, 8/14/06)

Issue/Holding: Because (c)ounsel’s work must be assessed as a whole,” an ineffective-assistance claim is a single ground for relief for certificate of appealability purposes, though R. 2(c), Rules Governing Section 2254 Cases, does require that the petitioner specify all grounds for relief along with supporting facts.

State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remanding summary order of court of appeals, reconsideration denied, 2006 WI 121
For Coleman: Brian Kinstler

Issue/Holding:

¶28      Prihoda, Sawyer, Lohr and Schafer all employ a three-element test where the first element is unreasonable delay in bringing the claim and the other two elements apply to the party asserting laches: lack of knowledge (that the claim would be brought) and effect (prejudice). In Neylan, McMillian, Smalley and Evans, the first element is the same, unreasonable delay, but the second element of the two-element analysis is set out as “actual prejudice.” When the delay is not extensive, the movant’s lack of knowledge that the claim would be brought is important in assessing prejudice. Neylan, 121 Wis.  2d at 491 n.5. Stated otherwise, actual prejudice includes the concept that the party raising laches did not have knowledge that the claim would be brought and that he suffered prejudice because of the delay in bringing the claim.

¶29      Because it may be difficult to quantify “actual prejudice,” we conclude that the three-element analysis of Sawyer and Prihoda provides the better analytic framework for assessing a laches defense than does the two-element analysis set out in McMillian, Smalley and Evans. Carefully applied to the facts, assessing whether a party raising laches did not have knowledge that the claim would be brought will permit the circuit court to more fully apprise the effect of a claim that has been unreasonably delayed. For example, if the State had knowledge that Coleman would bring his claim of ineffective appellate counsel, but destroyed all the records that it possessed that were relevant to that claim, the State might be prejudiced in defending against the claim, but it would nevertheless fail on its laches defense.

Coleman was convicted and sentenced to 80 years in 1986. Appointed appellate counsel unsuccessfully pursued a sentence modification and then, after consultation with and agreement from Coleman, terminated his appointment in 1987 without filing an appeal. Then, 17 years later, Coleman filed a habeas petition in the court of appeals alleging that counsel had been deficient in not identifying a potentially meritorious and preservedsuppression issue. (That is, the claim is not one of client abandonment but instead of identification of an issue already apparent in the record.)First, a procedural aspect noted only in the barest of passing by the court: where, and by what mechanism, should an ineffective-assistance claim be brought? These waters were first muddied by State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 797-98, 565 N.W.2d 805 (Ct. App. 1997):

… Under Knight, a claim of ineffective assistance of appellate counsel is properly raised by petition for a writ of habeas corpus in the appellate court which heard the defendant’s direct appeal. See Knight, 168 Wis.2d at 512-13, 484 N.W.2d at 541. However, under Rothering, where the alleged deficiencies relate to action or inaction by postconviction counsel, the ineffective assistance claim should be raised in the circuit court either by a petition for a writ of habeas corpus or a motion under § 974.06, STATS. SeeRothering, 205 Wis.2d at 672-74, 556 N.W.2d at 138-39.

If Coleman’s challenge is to postconviction counsel’s failure to identify the suppression issue, then under Smalley it should have been raised by § 974.06 motion filed in the trial court. But if this failure is attributable to appellate counsel, then the habeas petition Coleman filed in the court of appeals was the proper way to go. But just which role was counsel occupying when he failed to take up the suppression issue? True, you can simply file an appeal raising an already-preserved issue, which would arguably make the omission attributable to appellate counsel. But there’s nothing to prevent renewal of issue on postconviction motion, something that makes sense if there’s going to be a postconviction motion anyway, as indeed there was; so, the omission could well be attributable to postconviction counsel. The problem lies with Rothering‘s stilted and often-blurred distinction between these categories — which brings us back to Coleman.Habeas, the court says without any elaboration, is the correct vehicle for raising Coleman’s claim: “Coleman has properly chosen the last form [i.e., habeas as opposed to § 974.06 motion] under which to seek relief from his convictions because his claim is based on an allegation of ineffective assistance of appellate counsel,” ¶16. At a minimum, this would seem to mean that failure to file an appeal where the record contains apreserved issue is a failure attributable to appellate counsel, and therefore is challenged via habeas in the court of appeals. Because Rothering involved an unpreserved issue, its distinction between types of counsel may well remain viable. In any event, the fault line between Rothering motions and habeas petitions (preserved vs. non-preserved issues) is at least arguably sharpened, if implicitly, by Coleman.

Smalley does take an explicit beating on its laches analysis, ¶25 (“While Smalley refers to laches and uses laches terminology, it appears to have conflated its analysis of the habeas petition’s timeliness with the unreasonable delay element of laches.”), and it may be that the result in that case is now in doubt (unexplained 8-year delay in filing habeas claim of client abandonment was unreasonable and for that reason alone review was barred). Note, however, the court’s apparent approval of a timeliness analysis, as distinct from laches and as to which the habeas petitioner bears the burden of proof: “the decision places the burden of proof for timeliness of the petition on Smalley, which is in accord with reviewing timeliness in regard to a habeas petition,” ¶25.

On to the merits. The “uncontroverted fact that Coleman knew of his claim for more than 16 years but … did nothing, year after year,” establishes that his “delay was unreasonable as a matter of law,” ¶33. But laches requires more, namely prejudice to the State, something the court of appeals impermissibly assumed, necessitating remand:

¶36      While the court of appeals’ assumption may prove true, it is not the only possible outcome that could result from an inquiry of postconviction counsel. Therefore, it cannot be decided as a matter of law. To the contrary, appellate counsel may be able to recall or to reconstruct what happened during his communications with Coleman; what Coleman’s response was; and how they reached the ultimate decision not to appeal. If he cannot, then the court of appeals is correct that the State suffered prejudice in being able to meet Coleman’s claim of ineffective assistance of appellate counsel. But if counsel proves the assumption of the court incorrect, further proceedings on Coleman’s claim of ineffective assistance will be required.

(The court of appeals lacks authority to make its own factual findings, and therefore must either use a special master or remand to the circuit court, ¶2 n. 2 and accompanying text.)

The 3-vote concurrence, incidentally, makes the cogent point that without fact-finding it can’t be said that the State proved unreasonable delay in filing the petition, ¶¶39, et seq. Yet that does seem to be exactly what the majority has done, if by the barest of margins. The best that might be said is that a delay significantly less than 16 years might lead to a different conclusion.