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Habeas – Procedural default, Evidentiary hearing

Alan Ward v. Deppisch, 7th Cir No. 08-2809, 07/23/2010

7th circuit decision, review of unpublished court of appeals decision

Habeas – Procedural Default

The state argues that Ward procedurally defaulted his claim because he failed to fairly present the Wisconsin courts with a federal issue, and the state courts ruled against Ward based on adequate and independent state law grounds. We disagree. A review of Ward’s postconviction motion before the state court shows that he fairly presented a federal issue. Ward claimed that Opgenorth provided ineffective assistance of counsel because he failed to withdraw his guilty plea. Ward cited the Sixth and Fourteenth Amendments, Strickland v. Washington, and a number of state cases involving con- stitutional analysis. While Ward’s motion did not provide a highly detailed factual basis for Opgenorth’s alleged deficient conduct or a precise account of how that conduct prejudiced Ward, it adequately called to mind a specific constitutional right—the Sixth Amend- ment right to effective assistance of counsel—and alleged a pattern of facts that is well within the mainstream of constitutional litigation of that right. See Perruquet, 390 F.3d at 512 (“Whatever gaps there may be in [defendant’s] petition and supporting memorandum, the basic rationale of [defendant’s] due process argument is readily discernible.”). Ward’s claim contains enough detail to have sufficiently alerted the state court to his federal constitutional claim.

… While Ward’s federal argument is more developed than it was before the state court (as one would expect with the benefit of counsel), the substance is the same: that Opgenorth ignored requests to move to withdraw the guilty plea. See Picard v. Connor, 404 U.S. 270, 277 (1971) (holding that “variations in the legal theory or factual allegations” of a claim do not bar review so long as the substance of the federal claim remains the same).

Habeas – Evidentiary Hearing

AEDPA governs the availability of evidentiary hearings on federal habeas review, and generally bars them except in narrow exceptions inapplicable to Ward. See 28 U.S.C. §§ 2254(e)(2)(A), (B). But § 2254(e)(2)’s bar only applies when the failure to develop the factual basis for a claim is attributable to the petitioner. Williams v. Taylor, 529 U.S. 420, 435 (2000); Davis v. Lambert, 388 F.3d 1050, 1059-60 (7th Cir. 2004). Here, it is through no fault of Ward that the factual basis of his claim has not been developed. Ward diligently sought a Machner hearing at every step in his state court proceedings, but those requests were denied. Section 2254(e)(2) thus does not bar an evidentiary hearing for Ward. Allen v. Buss, 558 F.3d 657, 664-65 (7th Cir. 2009) (§ 2254(e)(2) does not block evidentiary hearing where state court did not fully consider evidence petitioner had put forth); Davis, 388 F.3d at 1060 (§ 2254(e)(2) no bar where petitioner was “diligent in pursuing his opportunities to develop the necessary facts in state court.”).

With AEDPA posing no bar, Ward is entitled to an evidentiary hearing in federal court if (1) he has alleged facts which, if proved, would entitle him to habeas relief and (2) the state courts, for reasons beyond his control, never considered his claim in a full and fair hearing. Davis, 388 F.3d at 1061; Matheney v. Anderson, 253 F.3d 1025, 1039 (7th Cir. 2001). For the reasons explained below, we find that Ward has satisfied these require- ments. Ward has alleged facts which if proven would entitle him to habeas relief on his ineffective assistance of counsel claim, and despite his efforts, the state courts never considered the claim in a full and fair hearing.

Ward alleges that his attorney failed, despite Ward’s insistence, to file a pre-sentening motion to withdraw guilty plea. The court says that this allegation, if true, would constitute deficient performance. The state court never held a hearing on the allegation, so the habeas court must do so now. The court provides exceptionally little analysis on potential deficient performance, except to say: “The decision whether or not to plead guilty is a major one that rests ultimately with the client, and a lawyer who disregards specific instructions as to such a decision acts unreasonably.” Plea-withdrawal isn’t quite the same thing as as plea-entry. However, the State conceded that if counsel had refused to abide by a request to file a motion for plea-withdrawal, then counsel’s performance was deficient. so the court had no need to analyze the question in any detail.

As for prejudice, Ward must show reasonable probability that: he would have insisted on trial, but for counsel’s error; and that the trial court would have granted plea-withdrawal. The first showing is met implicitly by his alleged insistence on seeking plea-withdrawal. The second implicates the “fair and just reason” for pre-sentencing plea-withdrawal. Ward posits confusion: “Given the broad discretion Wisconsin courts have in this area, we find that there is a reasonable probability that the trial court would have found that there was fair and just reason to permit Ward to withdraw his plea. See Jenkins, 736 N.W.2d at 33; see also Garcia, 532 N.W.2d at 117 (‘confusion is a fair and just reason for withdrawal’).”

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