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Federal District court says, contra SCOW, that there’s no “clearly stronger” element to an appellate IAC claim

Walker v. Pollard, 18C0147, Eastern District of Wisconsin, 9/4/19

Montgomery Walker is a pro se habeas petitioner who alleges that his postconviction/appellate counsel should have raised a claim of juror bias. In an order granting Walker an evidentiary hearing, the U.S. District Court holds that our supreme court was wrong, in State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, to say an appellate lawyer can’t be ineffective for failing to raise a claim unless that claim is “clearly stronger” that claims the lawyer did raise. The decision explains that SCOW misread Smith v. Robbins528 U.S. 259 (2000), as imposing such a rule. The whole thing is worth a read, but here’s the nub, if you’re thinking of challenging our state’s rule:

In [Starks], the court held that, to prevail on a claim of ineffective assistance of appellate counsel involving counsel’s failure to raise arguments, the defendant, in addition to showing that appellate counsel performed deficiently and that he was prejudiced as a result, must “also establish why the unraised claims . . . were `clearly stronger’ than the claims that appellate counsel raised on appeal.” Id. at 305-06 (emphasis added).

Immediately we see the problem here: In Starks, the Wisconsin Supreme Court added a third element to the Strickland test for claims of ineffective assistance of counsel involving appellate counsel’s failure to raise an argument. But of course, Strickland clearly establishes that a claim of ineffective assistance of counsel has only two elements: deficient performance and prejudice. See Strickland, 466 U.S. at 687. Moreover, the Supreme Court of the United States has clearly established that Strickland‘s two-pronged standard governs all claims for ineffective assistance of appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000). Thus, the Wisconsin Supreme Court’s decision to add a third element to Strickland for claims involving appellate counsel’s failure to raise an issue was contrary to clearly established Supreme Court law.


{ 3 comments… add one }
  • Robert Henak September 17, 2019, 10:36 am

    The federal court also appropriately took the state court to task for faulting Walker failing to include a “comparison to the issues postconviction counsel originally raised” in his motion. Walker, 2017 WL 3484968, at *3, aptly labeling the state court’s requirement as “an unexpected and freakish application of the state’s pleading rules.” As the federal court pointed out, “[b]oth the trial court and the court of appeals knew exactly what claims postconviction counsel had raised in her original motion.”
    “had all the information they needed to meaningfully assess Walker’s allegation that the juror issue was clearly stronger than the issues raised by postconviction counsel. Each court could have compared the juror issue to the issues raised and then answered the legal question of whether the juror issue was clearly stronger. Accordingly, the courts’ conclusions that Walker was required to provide them with some other “support” for his allegation that the juror issue was clearly stronger than the issues raised was unexpected and freakish.”

  • Robert Henak September 17, 2019, 10:38 am

    The federal court also took the court of appeals to task for that court’s “unusually strict application of the pleading standard also conflicts with the Wisconsin Supreme Court’s directive to construe pro se pleadings liberally. See, e.g., State ex rel. Kyles v. Pollard, 354 Wis. 2d 626, 647 (2014). ”

    “These are not the kinds of shortcomings a court normally holds against a pro se litigant. At the very least, if the state courts deemed Walker’s motion procedurally deficient due to his failure to satisfy some formal aspect of the pleading standard, they could have granted him an opportunity to supply the missing information before denying his motion without a hearing. See Allen, 274 Wis. 2d at 580 (Wisconsin Supreme Court states that when a postconviction motion does not satisfy the pleading standard, “the circuit court may order the defendant to submit more specific evidence regarding his motion”).”

  • Robert Henak September 17, 2019, 10:42 am

    On the whole, this federal decision appropriately takes the state court to task on a number of grounds which those who practice criminal appeals recognize as far too common in our state appellate courts. While it is understandably difficult to win a federal habeas claim, hopefully this decision will be a warning to the state courts.

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