HUGE Defense Win: 7th Circuit holds that SCOW’s decision is not entitled to AEDPA deference, calls Wisconsin’s treatment of petitioner a “travesty of justice” and grants writ

Robert J. Pope v. Je’Leslie Taylor, No. 23-2894, 5/6/24, affirming Pope v. Kemper, 21-CV-0346 (E.D. Wis. 9/1/23)

In a refreshing defense win that cuts through the procedural weeds and directly attacks the unjust nature of Pope’s treatment by Wisconsin’s appellate courts, the Seventh Circuit wastes no time in affirming the district court’s grant of the writ of habeas corpus.

(Note that prior posts about the state law litigation can be found here, here and here.)

We’ve posted on this notorious case many times, most recently in connection with Judge Ludwig’s well-reasoned and thorough order granting Pope’s petition for a writ of habeas corpus. As we suggested in our post, there was a lot of “inside baseball” discussed within that prior order, as this is a habeas case arising from what appears to be a solely state-law based Wisconsin Supreme Court decision. Practitioners familiar with the often-vexing procedural rules expressly designed to frustrate the ability of state litigants to effectively access federal courts know all too well how those byzantine regulations can often operate to obscure the “on the ground” reality. We admit that we were primed, given the nature of Judge Ludwig’s order, for more of the same in this decision. Enter, ever-so characteristically, Judge Easterbrook, who wastes no time in decimating the State’s arguments and who is unhesitant in calling out what he believes to be a “travesty of justice.”  (p. 5). His five-page decision is a breath of fresh air for indigent defenders throughout our state.

The facts, as the Seventh sees them, are straightforward. Pope was convicted and sentenced in 1996. (p.1). Although Pope filled out the correct paperwork requesting postconviction relief, his lawyer–who “has been reprimanded for abandoning at least four other criminal defendants”–failed to “take any of the steps necessary to protect Pope’s rights.” (p.2). Pope next contacted the public defender, who advised him he first needed to seek an extension from COA in order to file his notice of intent. (Id.). COA, in this pre-Kyles era, rejected the motion as untimely. (Id.). It faulted him “for not doing himself what the lawyer was supposed to do for him.” (Id.). Pope then tried unsuccessfully to reinstate his rights for years, only succeeding in 2016 once the State belatedly agreed that he was “entitled to an appeal.” (Id.).

Although his appellate rights were reinstated, that order “did not do Pope any good” as the rule requiring retention of transcripts for ten years meant that all the transcripts from his 1996 case had been destroyed. (Id.). As a result, the Milwaukee County Circuit Court granted his request for a new trial. (Id.). Both COA and SCOW held otherwise. SCOW’s decision faulted Pope for not obtaining his transcripts while he was being actively denied his right to an appeal and for not identifying, in connection with his belated direct appeal where no transcripts were available, “a facially valid claim of arguably prejudicial error.” (p.3).

Having sympathetically recapped the facts, the Court wastes no time in affirming Judge Ludwig’s order. It finds that Pope has been denied two constitutional rights–his right to the assistance of counsel (given his lawyer’s abandonment of him and failure to initiate an appeal) “and the right to an appeal equivalent to that available to well-heeled litigants” (given that a non-indigent litigant could have purchased the transcripts when Pope first tried to request them in 1997). (p.4).

Notably, because Wisconsin “treated all ensuing issues as matters of state law” it “surrendered the benefit of deference” otherwise required under AEDPA. (p.4). Thus, while the AG tries to argue that the “facially valid claim of arguably prejudicial error” requirement is an “independent and adequate” state ground that blocks Pope from obtaining habeas relief, the Court rejects that line of attack with some notably harsh rhetoric. Although the ground may be independent, it surely cannot be “adequate.”

The problem is easy to see. Wisconsin insists that offering a criminal defendant an appeal, 20 years late, without a transcript, is a constitutionally adequate substitute for a timely appeal with a lawyer and a transcript. To state the position is to show the fallacy. No sane person would accept one in lieu of the other. Wisconsin might as well have told Pope that he was welcome to an appeal, but only if he submitted his brief in Punic.

(p.4-5).

Citing its recent decision in Carter v. Buesgen–which found a four-year delay in resolving a state court appeal “ineffective to protect the rights of the applicant”–the Court is left without words to adequately communicate the serious deprivation entitled by the 28-year delay encountered by Pope. (p.5). How disturbed is the Court by Pope’s case? The answer is implicit in this stand-alone, single-sentence paragraph: “Wisconsin’s treatment of Pope is a travesty of justice.” (p.5). Accordingly, the district court’s order granting the writ is affirmed, and the State now has a very short window within which to retry Pope: “Pope must be released on bail unless that trial begins within two months–and, if the trial has not started in three months, the conviction must be vacated and Pope released unconditionally.” (p.5).

And with that parting shot, Judge Easterbrook drops the mic. All in all, an extremely exciting defense win. Shoutout to the SPD’s Andrea Taylor Cornwall, who has been fighting this uphill battle on behalf of her client since 2017!