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State v. David J. Balliette, 2009AP472, Wis SCT rev grant, 8/31/10

decision below: summary order (not posted); case information here; prior appeal: 2001AP2527-CR; for Balliette: Steven D. Grunder, SPD, Madison Appellate

Issue (from AG’s petition for review):

Is an evidentiary hearing into the effectiveness of post-conviction counsel required in every case where the § 974.06 motion merely makes the conclusory allegation that post-conviction counsel was ineffective for not raising additional challenges to the effectiveness of trial counsel on direct review?

Don’t you wish you could get discretionary review on the basis of a rhetorical question? You could … if only you were were representing the State; but that is itself merely the answer to a rhetorical question.

The court of appeals briefs in this case aren’t available on-line; neither is the decision, because it’s a summary order. Given this deficit of information, there’s not much to say presently. Except this: the case appears to raise a purely procedural issue, whether the court of appeals erred in ordering a hearing on an IAC claim. (To which might be added that the Rule 809.62 standards tend to get thrown out the window on AG petitions.) Assuming the court’s “headline” summary is accurate, then the issue relates to necessity of a hearing on whether Balliette’s trial counsel was ineffective for not hiring an accident reconstruction expert (and whether postconviction counsel was similarly ineffective for not raising this argument on direct appeal). The direct-appeal opinion (link above) also contains some background. If you want more details about the case, best bet would be to check the supreme court briefs, which will be available sometime down the road at the case information link above .

UPDATE: The court has now posted its version of the Issues:

Under what circumstances is an evidentiary hearing into the effectiveness of postconviction counsel required where a postconviction motion under Wis. Stat. § 974.06 alleges that counsel was ineffective for not raising additional challenges to the effectiveness of trial counsel on direct appellate review?

Whether postconviction counsel was ineffective under the “clearly stronger” standard referenced in Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. 746, 145 L.Ed.2d 756 (2000) (defendant generally must demonstrate that an ignored issue is “clearly stronger” than issues raised during the direct appeal to show that postconviction counsel performed deficiently by not raising the issue).

Cast in these terms, the Issue may well hold interest, at least for appellate practitioners. Not too much in Wisconsin caselaw on he point, which is how to measure appellate counsel’s performance in litigating a merits appeal. Smith puts its this way:

… it 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 (CA7 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. In both cases, however, the prejudice analysis will be the same.

For a stab at testable standards, see Franklin v. Anderson, 434 F. 3d 412 (6th Cir. 2006):

1. Were the omitted issues “significant and obvious?”

2. Was there arguably contrary authority on the omitted issues?

3. Were the omitted issues clearly stronger than those presented?

4. Were the omitted issues objected to at trial?

5. Were the trial court’s rulings subject to deference on appeal?

6. Did appellate counsel testify in a collateral proceeding as to his appeal strategy and, if so, were the justifications reasonable?

7. What was the appellate counsel’s level of experience and expertise?

8. Did the petitioner and appellate counsel meet and go over possible issues?

9. Is there evidence that counsel reviewed all the facts?

10. Were the omitted issues dealt with in other assignments of error?

11. Was the decision to omit an issue an unreasonable one which only an incompetent attorney would adopt?

More updates to follow, if and as warranted; check back at this page.

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