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Eastern District grants writ of habeas corpus, holds that SCOW unreasonably applied SCOTUS precedents in missing transcripts case

Robert James Pope , Jr. v. Warden Paul Kemper, 21-CV-0346 (E.D. Wis. 9/1/23).

In a satisfying–and long-delayed–defense win, Judge Ludwig of the Eastern District acknowledges that when a prisoner, previously abandoned by counsel, is then forced to appeal his conviction without having transcripts made available to him, that procedure violates “clearly established” US Constitutional law.

(Note: Due to some technical issues, only the Justia link for this order was available at publication. We have surmounted the issues; the PDF is now here.)

We’ve posted on this somewhat notorious 4-3 decision from SCOW before. In essence, Pope was abandoned by counsel and spent roughly two decades trying to resurrect his appellate rights. Although the State eventually agreed that Pope’s right to a direct appeal should be reinstated, it quickly reversed course when it turned out that there were no transcripts available from his 1996 trial. Although Pope prevailed in the circuit court and obtained a new trial due to this defective record, SCOW eventually accepted the State’s arguments seeking to blame Pope for the unfortunate situation. SCOW therefore issued a decision effectively holding that Pope’s right to an appeal doesn’t guarantee him a “meaningful” appeal. In essence, because his lawyer unconstitutionally abandoned him decades ago, SCOW held that Pope is forever barred from appealing his conviction and life without parole sentence. Thankfully, Pope did not take this unjust result lying down. After first unsuccessfully filing a petition for a writ of certiorari, Pope eventually pursued habeas relief in the Eastern District. In a decision highly critical of both the State’s arguments and SCOW’s reasoning, Judge Ludwig grants the petition.

Pope’s task in this habeas proceeding is to prove that the “remedy” given to him by SCOW–“a direct appeal without transcripts—left Pope without a ‘meaningful appeal’ in violation of his Sixth and Fourteenth Amendment rights.” (p.1). After a lengthy, well-researched, and sympathetic statement of facts laying bare the myriad unjust obstacles faced by Pope in trying to obtain a direct appeal, Judge Ludwig’s decision dives headfirst into the murky waters of federal habeas law to ascertain whether this is one of the exceptional cases meriting relief under an intentionally defense-unfriendly standard of review.

In the State’s view, habeas relief is unavailable because Pope got what the constitution promises–reinstatement of his appellate rights after his lawyer abandoned him three decades ago and failed to file a notice of intent. (p.9). While there’s no dispute this was a significant violation of Pope’s rights, the State argues that this is all that Pope was entitled to–an “appeal” but not necessarily a “meaningful” appeal including actual transcripts to review and tasks for appointed counsel to fulfill. (p.9). However, clearly established precedent from SCOTUS makes clear that the right to transcripts–exactly what Pope was denied here–is part of the indigent defendant’s right to an appeal. (p.10). Based on these well-settled authorities, “The State’s affirmative duty to provide transcripts or an adequate alternative is not something it can simply handwave away.” (p.12). Not only does the State have an obligation to provide “an appeal” but, contrary to the State’s position in this case, it has to provide the defendant with a meaningful appeal, which includes access to transcripts or their equivalent.

That proposition should not be controversial, in Judge Ludwig’s view, as even the State eventually concedes that “Pope had the right to free transcripts on direct review.” (p.14). Despite that concession, the State then invokes a series of arguments seeking to evade responsibility for depriving Pope of his transcripts. Like the majority in the SCOW decision, the State blames Pope (an incarcerated, unrepresented person) for not acting to preserve the transcripts before they were destroyed by other system actors. (p.15). That argument goes nowhere, however, as the State has also conceded that Pope was denied his right to counsel when his appointed lawyer failed to file his NOI and, under well-settled law, “[w]hen the State denies a defendant his right to counsel, the State, not the marooned criminal defendant, assumes the burden of any predictable mistakes.” (p.15).

Seeking to evade its constitutional obligations, the State’s final gambit is to argue that the vagaries of habeas corpus law should operate as a technical reason for denying Pope’s petition. The State argues that SCOW’s invocation of a state procedural rule–the Perry/DeLeon procedure applicable when the defendant alleges that a portion, as opposed to all, of his transcripts are missing–is an “adequate and independent procedural ground” justifying its holding and, thus, that habeas relief is categorically unavailable in this specific circumstance. (p.19). Judge Ludwig, however, is unpersuaded. While habeas law does insulate state court decisions from federal court relief when that decision is based on the application of an “independent and adequate” procedural rule, here, application of the Perry/DeLeon procedure was not “adequate” for two reasons: (1) applied to Pope, it “sacrifices” Pope’s constitutional rights and the “State cannot enact a procedural rule that absolves it of its own constitutional violations” and (2) the rule was not firmly established, as application of Perry/DeLeon to a situation involving the total deprivation of transcripts was a novel and unprecedented legal development occurring for the first time in this case. (p.20).

Accordingly, the State is ordered to retry Pope or release him from custody. (p.23).

We’ll be honest: There’s a lot of “inside baseball” at issue in this habeas decision and, in trying to elucidate the essential failings of the Wisconsin Supreme Court’s decision, we’ve tried not to get bogged down in those technical points. The upshot of this decision is that it reaffirms what many already knew to be the case when Pope unjustly lost his case in SCOW: That it makes no sense to hold that the State of Wisconsin unconstitutionally denied Pope his right to an appeal when he was abandoned by counsel but to then, in the same breath, blame that same abandoned defendant for an ensuing alleged procedural default. In rejecting the State’s argument seeking to turn the right to an appeal into an empty shell, this decision is cause for celebration. And, while its habeas corpus quirks probably make it good fodder for meaty review in the Seventh Circuit, the fundamental issue at the heart of the appeal–whether the constitution requires a meaningful appeal, and not just “an appeal,” period–is one that, as Judge Ludwig recognizes, cannot be easily “handwaved” away. Here’s hoping the panel sees it the same way.

{ 1 comment… add one }
  • ALLEN F KENYON September 11, 2023, 3:04 pm

    It is the obligation of the government to play fair.

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