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Guest Post: Rob Henak on 974.06 and SCOW’s new standard for ineffective assistance of appellate counsel

 State v. Tramell Starks,  2013 WI 69, affirming an unpublished court of appeals decision, case activity. Majority opinion by Justice Gableman, with a dissent by Justice Bradley and joined by Chief Justice Abrahamson and Justice Crooks

On Point is pleased to present this guest post by Attorney Rob Henak, an expert on Wis. Stat. § 974.06 postconviction motions and ineffective assistance of appellate counsel.


The Supreme Court’s decision in State v. Tramell Starks is a mixed bag for defendants, prosecutors, and the courts, all of whom have an interest (though sometimes overlooked) in correcting unfair or unconstitutional convictions and sentences.  On the one hand, the Court unanimously abolished a baseless procedural bar that some lower courts had used to deny relief under Wis. Stat. §974.06.  On the other, the four-justice majority sua sponte, and seemingly unknowingly, wrecked havoc on settled procedures for challenging the effectiveness of post-conviction or appellate counsel.  That majority also both announced a restrictive, general standard for assessing the effectiveness of appellate counsel that conflicts with the standard mandated by the United States Supreme Court and misapplied the “clearly stronger” standard in Starks’ case in any event.

The misguided latter half of this decision will create much unnecessary confusion, litigation, and resulting costs to Wisconsin taxpayers.  Also, while experienced post-conviction litigators ultimately will be able to obtain relief for some deserving defendants through federal habeas (made easier by the majority’s failure to follow controlling Supreme Court precedent), the majority’s actions mean that more innocent or unfairly convicted defendants will remain incarcerated longer, at a cost not only to them and their families but to Wisconsin taxpayers as well.


A jury convicted Starks of first degree reckless homicide as a lesser included offense of intentional homicide.  Appointed counsel’s direct appeal was unsuccessful.  After Starks filed a pro se motion seeking to vacate his DNA surcharge on non-constitutional grounds, see State v. Cherry, 2008 WI App 80, 312 Wis.2d 203, 752 N.W.2d 393 (sentencing court erroneously exercises its discretion by failing to explain why imposition of DNA surcharge is appropriate), he filed a pro se §974.06 motion challenging his conviction on the grounds that his post-conviction attorney had unreasonably failed to challenge the effectiveness of his trial counsel.

The circuit court denied the motion on the merits and without a hearing.  The Court of Appeals, however, affirmed that denial on other grounds, holding that Starks was barred from raising his claims under Wis. Stat. §974.06(4) because he did not show “sufficient reason” why the ineffective assistance claims were not raised in his prior Cherry motion.


The Supreme Court rejected the Court of Appeals’ “sufficient reason” argument.  ¶¶41-53. Focusing on the common sense notion that a defendant cannot rationally be deemed to have “defaulted” a constitutional claim by failing to raise it in a non-constitutional proceeding, the Court held that a prior Cherry motion or non-constitutional sentence modification motion raised after the direct appeal cannot reasonably be deemed a “prior motion” triggering the requirement under §974.06(4) that the defendant show a “sufficient reason” why the constitutional issues he seeks to raise now were not raised in the prior motion:

¶46      . . . While the court of appeals concluded that Starks’s Cherry motion prohibited him from refiling his §974.06 motion, our analysis of the interrelationship between the criminal appellate and postconviction statutes, as well as applicable case law, reveals that sentence modification and postconviction relief under Wis. Stat. §974.06 are separate proceedings such that filing one does not result in a waiver of the other. In this case, that means that Stark’s Cherry motion did not bar his subsequent §974.06 motion.

Other than the misplaced reference to “waive[r]” – “waiver” requires a knowing and intentional relinquishment of a known right, not a mere failure to assert a right, see State v. Ndina, 2009 WI 21, 315 Wis.2d 653, 761 N.W.2d 612 – the Court’s analysis on this point is unimpeachable.  The remainder of the majority decision does not fare so well.


First, the majority asserts sua sponte that Starks erroneously filed his post-conviction ineffectiveness claim in the circuit court rather than in the Court of Appeals, thus raising a question of jurisdiction.  ¶¶4, 30, 33-39.

¶4        At the outset we note that there is a procedural problem in this case. Starks’s Wis. Stat. § 974.06 motion, which was filed with the circuit court, alleged ineffective assistance of postconviction counsel. However, the attorney who represented him after his conviction did not file any postconviction motions and instead pursued a direct appeal. He was thus not Starks’s postconviction counsel but was rather his appellate counsel. This is significant because claims of ineffective assistance of appellate counsel must be filed in the form of a petition for a writ of habeas corpus with the court of appeals. State v. Knight, 168 Wis. 2d 509, 520, 484 N.W.2d 540 (1992). By bringing his claim in the circuit court, Starks pursued his case in the wrong forum.

Neither party challenged the fact that Starks raised his postconviction ineffectiveness claim in the circuit court under §974.06 for the simple reason that Wisconsin law has been clear for the past 17 years that the circuit court was the proper forum for such a claim.  Although overlooked by the Starks majority – no doubt due to its failure to request briefing on the point – the Court of Appeals expressly so held in State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 556 N.W.2d 136 (Ct. App. 1996), and the Supreme Court itself reaffirmed that holding just two years ago:

¶32 To bring a postconviction motion alleging ineffective assistance of appellate counsel, a defendant is required to file a petition for habeas corpus with the appellate court that heard the appeal. State v. Knight, 168 Wis.2d 509, 520, 484 N.W.2d 540 (1992). When, however, the conduct alleged to be ineffective is postconviction counsel’s failure to highlight some deficiency of trial counsel in a § 974.02 motion before the trial court, the defendant’s remedy lies with the circuit court under either Wis. Stat. § 974.06 or a  petition for habeas corpus. Rothering, 205 Wis.2d at 679, 681, 556 N.W.2d 136.

State v. Balliette, 2011 WI 79, ¶32, 336 Wis. 2d 358, 805 N.W.2d 334, cert. denied, 132 S. Ct. 825 (2011).


The Starks majority acknowledged the distinction between postconviction and appellate counsel, but inexplicably labeled counsel’s failure to file a postconviction motion in the circuit court as part of the direct appeal process a failure of appellate counsel.

The majority’s view is not and cannot be correct because, as both the Court of Appeals in Rothering and the Supreme Court itself in Balliette explained, “[c]laims of ineffective trial counsel … cannot be reviewed on appeal absent a postconviction motion in the trial court.” Balliette, 2011 WI 79, ¶29, quoting Rothering, 205 Wis.2d at 677–78.  Accordingly counsel’s failure to raise a trial level ineffectiveness claim for the first time on appeal cannot be ineffectiveness of appellate counsel because appellate counsel does not act unreasonably in failing to raise an unpreserved claim in the appellate court.  Rather, the ineffectiveness is of postconviction counsel for failing to raise the claim in a postconviction motion in the circuit court as part of the direct appeal process.  Rothering, 205 Wis.2d at 677-79.

Under settled Wisconsin law – at least as it existed prior to Starks – unreasonable errors or omissions by counsel in the circuit court were to be addressed in the circuit court by motion under Wis. Stat. (Rule) 809.30(2)(h) or §974.06 while such errors or omissions of counsel in the Court of Appeals were to be addressed in that court by a Knight petition.   It would appear that the Starks majority merely overlooked this settled aspect of Wisconsin law.  One would expect, given the significant confusion and potential damage to settled expectations of proper procedure necessarily resulting from its dicta, that either or both parties in Starks will request reconsideration on this issue.

Finally, on the core issue of Starks’ substantive claims, the U.S. Supreme Court long ago established that all claims of ineffective assistance of counsel must be judged based on the two-prong standard of Strickland v. Washington, 466 U.S. 668 (1984).  The first, deficiency prong is met where counsel’s representation “fell below an objective standard of reasonableness.”  Id. at 688. The second, prejudice prong is satisfied when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Id. at 694.

The same Strickland standard for ineffectiveness applies to assess the constitutional effectiveness of post-conviction or appellate counsel.  Smith v. Robbins, 528 U.S. 259, 285-86, 287-88 (2000).  The defendant raising such a claim must show both that post-conviction or appellate counsel acted unreasonably and a reasonable probability that he or she would have prevailed on appeal but for counsel’s unreasonable behavior.  Id.

The Starks majority nonetheless chose to add an additional requirement to the standard for appellate ineffectiveness, requiring that the defendant show not just deficient performance and resulting prejudice as required by Strickland, but also that the issues the defendant claims that appellate counsel should have raised are “clearly stronger” than those actually raised on the direct appeal.  The majority deemed the requirement mandated by Smith¶¶54-64.

According to the majority, the Supreme Court in Smith held that when a defendant (such as Robbins) alleges that his appellate attorney was deficient for failing to file a merits brief, all that a defendant must do to show deficiency is to demonstrate “that a reasonably competent attorney would have found one nonfrivolous issue warranting a merits brief . . . .”  Id. at 288. However, when a defendant (such as Starks) alleges that his appellate attorney was deficient for not raising a particular claim, “it [will be] difficult to demonstrate that counsel was incompetent” because the defendant must show that “a particular nonfrivolous issue was clearly stronger than issues that counsel did present.” Id. (emphasis added). ¶59.

This comment is puzzling because the Smith Court said no such thing.  Rather, the Starks majority omitted critical language from the Smith decision, substantially changing that Court’s meaning.  Compare the Starks majority’s assertion that Smith held “that  the defendant must show that ‘a particular nonfrivolous issue was clearly stronger than issues that counsel did present,’” with the actual language from the Smith decision:

[I]t is still possible to bring a Strickland claim based on counsel’s failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent. See, e.g.,  Gray v. Greer, 800 F.2d 644, 646 (C.A.7 1986) (“Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome”).  With a claim that counsel erroneously failed to file a merits brief, it will be easier for a defendant-appellant to satisfy the first part of the Strickland test, for it is only necessary for him to show that a reasonably competent attorney would have found one nonfrivolous issue warranting a merits brief, rather than showing that a particular nonfrivolous issue was clearly stronger than issues that counsel did present.  Smith, 528 U.S. at 288.

Somehow, despite the dissent’s pointing out this error, ¶¶82-97, the Starks majority overlooked both the Smith Court’s clear holding that Strickland standards apply to assessment of appellate ineffectiveness and the qualifying “[g]enerally” in the Smith decision’s “clearly stronger” reference.  As such, the majority transmogrified a common but by no means exclusive method of establishing that appellate counsel’s actions were unreasonable into a mandatory additional requirement.

The Starks majority’s decision to adopt the bright-line “clearly stronger” standard as the exclusive means of testing postconviction or appellate ineffectiveness in omitting claims also simply ignores the many other ways in which counsel may act unreasonably in such circumstances.  Under the “clearly stronger” approach, an attorney’s failure reasonably to investigate a claim of equal merit to those previously raised, or which would complement and strengthen those previously raised is irrelevant.  Under that approach, it is irrelevant if the attorney intended to raise the claim but simply forgot, or if counsel unreasonably failed to even think of the issue in the first place.  Yet each of these could demonstrate deficient performance under StricklandSee, e.g., Wiggins v. Smith, 539 U.S. 510, 534 (2003) (deficiency where counsel’s errors resulted from oversight or inattention rather than a reasoned defense strategy).  Yet, the Starks majority apparently assumes that the Smith Court intended its “clearly stronger” dicta to overrule the very Strickland reasonableness standard it simultaneously said courts must apply to ineffective appellate counsel claims. That assumption conflicts not only with Smith itself, but more recent Supreme Court authority as well.  See Cullen v. Pinholster, 131 S.Ct. 1388, 1406 (2011) (“[b]eyond the general requirement of reasonableness, ‘specific guidelines are not appropriate,’” citing Strickland, 466 U.S. at 688).


Even if one reasonably could accept the Starks majority’s adoption of the “clearly stronger” standard as the exclusive means of assessing appellate effectiveness, the majority’s application of that standard leaves much to be desired and will no doubt cause great confusion and distress among the lower courts as they try to force the majority’s holdings into existing legal standards.

For instance, the majority holds that the circuit court properly concluded without a hearing that the sworn allegations of a witness were “unreliable” merely because he originally was a co-defendant and had pled to the offense.  ¶67.  However, since the state often relies on exactly such evidence to meet its burden of proof beyond a reasonable doubt at trial, it is puzzling why such sworn evidence would be so inherently incredible as to justify denial of a claim without even a hearing when put forth by a defendant.  As noted by the dissent, ¶105, it is difficult to fit this holding into established law on the entitlement to a hearing.

The majority similarly holds that a factual finding at trial regarding an alleged violation of a sequestration order by the state’s two primary witnesses is conclusive and beyond challenge by newly discovered evidence from a witness to their colluding to falsely accuse Starks.  ¶¶68-69.  It will be difficult fitting this holding into established Wisconsin law recognizing that judicial determinations are not controlling when they result from ineffective assistance of counsel or the defendant satisfies the due process requirements for newly discovered evidence.

Third, the majority holds that it is insufficient to assert in a motion that particular phone records that trial counsel failed to obtain would demonstrate that the state’s witnesses lied about making a particular call to Starks because Starks did not produce the evidence (i.e., the phone records) in his motion to back up his claim.  ¶70.  Once again, the majority puts the cart before the horse, contrary to Wisconsin procedure, by requiring presentation in the motion of the defendant’s evidence supporting his specific factual allegations.  E.g.State v. Love, 2005 WI 116, 284 Wis.2d 111, 700 N.W.2d 62.  A specific factual allegation – such as that specific phone records would show that the state’s witnesses did not speak with Starks – are not rationally rendered “conclusory” merely because Starks did not attach the phone records corroborating that claim.

Finally, although admitting that a jury may have deemed the state’s witnesses less believable had trial counsel called two additional witnesses, the Starks majority “imagin[es],” albeit without evidence, that trial counsel intentionally chose not to call them for strategic reasons.  While counsel may be assumed to have acted for tactical reasons, at least where the defendant relies solely on the trial record without calling the attorney to testify, Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam), the majority’s apparent approval of denying a Machner hearing absent proof that trial counsel’s failure was due to something other than reasoned tactics effectively creates an “attorney’s veto” of most any ineffectiveness claim, allowing allegedly ineffective counsel to avoid a finding of ineffectiveness merely by refusing to speak with the defendant or his postconviction counsel.

It may be that the majority intended its “haphazard” evaluation of Starks’ substantive claims, Dissent, ¶10, to be justified by reference to the “clearly stronger” standard it adopted.  That is, it was not deciding whether Starks’ allegations would have entitled him to a hearing on his trial ineffectiveness claims as part of an 809.30/direct appeal motion, but merely whether his claims were “clearly stronger” than those raised on his direct appeal and thus reflective of ineffectiveness of appellate counsel.  However, “clearly stronger” necessarily is relative to the strength of the claims actually raised on the direct appeal, something that the majority ignores.  Its analysis of those claims accordingly will be difficult to jibe with existing standards.

Given the majority’s departures from both longstanding procedures for raising postconviction ineffectiveness claims and controlling legal standards for assessing such claims, Starks likely will cause more unnecessary confusion, litigation, and injustice than any other state court decision in recent memory.  Some of these injustices may be partially mitigated (albeit delayed and through increased costs to state taxpayers) by federal habeas review applying the proper legal standards.   Hopefully, however, the Court will act to correct its own mistakes before too much damage is done.

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