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Herbert Johnson, Sr. v. Thurmer, 7th Cir No. 07-2628, 10/18/10

7th circuit court of appeals decision, on habeas review of summary order of Wisconsin court of appeals

Habeas – Procedural Default & No-Merit Report

Johnson’s failure to assert an ineffective assistance of (trial) counsel claim in response to his appellate attorney’s no-merit report did not procedurally default that claim for purposes of subsequent collateral attack. The court follows Page v. Frank, 343 F.3d 901 (7th Cir. 2003) — “default was not based on an adequate state ground because of various inconsistencies in Wisconsin’s appellate procedure” — and in the process rejects Wisconsin’s request to reconsider Page.

Page premised its conclusion on two distinct principles. First, the state must not apply a waiver bar in an unexpected or freakish way, else the bar isn’t enforceable on federal habeas review. Wisconsin procedure requires that a challenge to trial counsel’s representation be brought in the circuit court in the first instance. Thus, it would be anomalous to impose a waiver bar for failing to assert in the court of appeals, in response to a no-merit, a ground (IAC) that that court simply wouldn’t entertain anyway (given, at least, procedure extant during litigation of Page).  “The practical effect of the Court of Appeals of Wisconsin’s conclusion —that the failure to identify ineffective assistance of trial counsel as an issue in response to an Anders no-merit brief constitutes a waiver—is to require Mr. Page to have asserted a claim before the court of appeals that, under established Wisconsin case law, he could not bring initially in that forum because it had not been brought to the attention of the trial court. Federal habeas review cannot be precluded on such a ground because the basis relied upon by the Wisconsin court does not apply Wisconsin procedure in a ‘consistent and principled way.'” 343 F.3d at 909.

The second premise for rejecting waiver is “even more fundamental.” A defendant has the right to assistance of counsel as part of the direct appeal process. Thus: “It would be incongruous to maintain that Mr. Page has a Sixth Amendment right to counsel on direct appeal, but then to accept the proposition that he can waive such right by simply failing to assert it in his pro se response challenging his counsel’s Anders motion.” Id.

There may be reason to doubt the continuing vitality of the first asserted reason, given that now, the Wisconsin court of appeals does have authority to process an IAC response. See §§ 809.32(1)(e)-(g), amended to such effect subsequent to state-court litigation of both Page and Johnson. The second reason, though, would seem to exist independent of any mechanism for reviewing an IAC claim during pendency of the no-merit appeal. As Johnson puts it (footnote 1): “There is clear tension between the requirement that a waiver of counsel be clear and intentional and the notion that a petitioner can waive that right simply by failing to respond to a no-merit report.” That tension seemingly remains.

Take note, as well, of State v. Aaron A. Allen, 2010 WI 89: “The fact that the defendant is not required to file a response to a no-merit report is not, by itself, a sufficient reason to permit the defendant to raise new § 974.06 claims,” ¶4. The court then imposed a waiver bar: “Allen’s § 974.06 motion is based entirely on issues that he could have raised in a response to his appellate counsel’s no-merit report,” ¶5. The court glancingly referred to Page, and suggested that the court of appeals’ authority to remand for an evidentiary hearing on an IAC claim provided support for rejecting that court’s conclusion, ¶88 and id. n. 9. But even if that is so, it is something that doesn’t quite get at the waiver problem. The Johnson court alludes to Allen, and reserves for a later day whether “the inconsistencies bound up in Wisconsin’s appellate procedures” have now been resolved.

Ineffective Assistance

Various claims of ineffective assistance, rejected:

  • Counsel disclosed, prior to trial, his mental health problems to Johnson, therefore did not violate a duty of candor to client; nor does Johnson point to specific deficient acts caused by these problems.
  • Failure to move to strike testimony of an uncharged crime (in violation of a pretrial order) “was likely a sound  tactical decision, designed to not draw attention to the very issue Johnson’s counsel rightfully wished to bury.”
  • Failure to move to suppress certain evidence wasn’t prejudicial, because the motion wouldn’t have succeeded (the record shows valid consent to search a shared residence).
  • Appellate counsel’s failure to include these issues in the no-merit report wasn’t deficient.
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