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When the Supreme Court Denies Review: Remedies after Direct Appeal ROBERT R. HENAK Henak Law Office, S.C. 1223 North Prospect Avenue Milwaukee, Wisconsin 53202 (414) 283-9300 Once the Wisconsin Supreme Court denies review on a defendant’s direct appeal, or decides against him or her on the merits, the usual reaction is that “it’s all over.” The Supreme Court has spoken and your client lost. The Public Defender’s obligation to appoint counsel is at an end and, absent extraordinary circumstances justifying a discretionary SPD appointment, the defendant must either come up with the funding to retain counsel, convince an attorney to handle the case pro bono, or proceed pro se. In any event, prospects are bleak. Denial of review or a Supreme Court ruling against you on the merits, however, does not necessarily mean the end of the line for your client. Despite the current popularity of the “finality right or wrong” crowd, there remains a number of potential procedural mechanisms for challenging the client’s conviction or sentence. Of course, the potential for success also requires both substantive merit and either sufficient funding for an attorney or the client’s ability to present the claims persuasively pro se. The focus here, however, is on the available procedures. POST-APPEAL PROCEDURES CHECKLIST: -- Petition for Certiorari to United States Supreme Court -- State Procedures: -- Wis. Stat. §974.06 petition -- Habeas petition in court of appeals -- Habeas petition in supreme court -- Habeas petition in circuit court -- Motion to modify sentence -- Motion for sentence credit -- Motion to modify conditions of probation -- Motion to vacate void portion of sentence -- Writ of error coram nobis -- Writ of certiorari -- Federal Procedures: -- Habeas corpus, 28 U.S.C. §2254 Writ of Certiorari to U.S. Supreme Court A. See generally Supreme Court Rules 10-16
B. Supreme Court’s web site has rules, forms and other helpful information: www.supremecourtus.gov C. General considerations:
1. Must be filed within 90 days of state supreme court’s denial of review or decision on merits. Sup. Ct. R. 13.1. Petition is deemed filed when mailed. Sup. Ct. R. 29.2.
2. Limited to issues of federal constitutional or statutory law raised and not procedurally defaulted below
3. Very few petitions are granted. Likely waste of time and money unless you can identify conflict regarding legal issue raised.
4. However, petition on direct appeal delays “finality” of conviction and starting date of 1-year limitations period for federal habeas under 28 U.S.C. §2244(d)(2)
5. Cert. Petition is not prerequisite to seeking federal habeas relief under 28 U.S.C. §2254 State Procedures:
A. Wis. Stat. §974.06.
1. See generally Henak, Ellen, The Changing Rules Governing Relief After Direct Appeal and Their Effect on Direct Appeals, 5 Wisconsin Defender 1 (Jan. 1997) (copy attached). 2. Considerations: a. Defendant must be “in custody” when petition filed
b. No statutory deadline for filing, but may be subject to laches c. Limited to constitutional or jurisdictional issues
d. Cannot be used to reargue issues unsuccessfully raised on direct appeal. State v. Witkowski, 163 Wis.2d 985, 473 N.W.2d 512 (Ct. App. 1991)
e. Generally cannot be used, absent “sufficient reason,” to raise issues which could have been raised on client’s direct appeal or prior post-conviction motion but were not. State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994); Wis. Stat. §974.06(4). But see Loop v. State, 65 Wis.2d 499, 222 N.W.2d 694 (1974) (“sufficient reason” unnecessary when defendant did not file direct appeal). Continued validity of Escalona-Naranjo is before the Supreme Court this term in State v. Anou Lo, Appeal No. 01-0843.
Meaning of “sufficient reason” remains unclear. Generally, however, “sufficient reason” includes:
i. constitutionally ineffective assistance of post-conviction or appellate counsel. See State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 556 N.W.2d 136, 139 (Ct. App. 1996).; Murray v. Carrier, 477 U.S. 478 (1986) (same under federal standard). Open question whether attorney errors not falling to constitutional ineffectiveness sufficient.
ii. when defendant challenges effectiveness of same counsel who represented defendant both at trial and on appeal. State v. Hensley, 221 Wis.2d 473, 585 N.W.2d 683 (Ct. App. 1998); State v. Robinson, 177 Wis.2d 46, 501 N.W.2d 831, 834 (Ct. App. 1993).
iii. when legal basis for claim did not exist until after the defendant’s prior efforts at post-conviction relief. State v. Howard, 211 Wis.2d 269, 564 N.W.2d 753, 761-62 (1997); Escalona-Naranjo, 517 N.W.2d at 162 n.11 (discussing State v. Klimas, 94 Wis.2d 288, 288 N.W.2d 157 (Ct. App. 1979)).
iv. See State v. Marcum, 204 Wis.2d 108, 552 N.W.2d 897, 1996 WL 387189 (Ct. App. 1996) (unpublished) (“sufficient reason” where factual basis for newly discovered evidence claim not discovered until after direct appeal); State v. Grant, 222 Wis.2d 217, 587 N.W.2d 213, 1998 WL 665384 (Ct. App. 1998) (“sufficient reason” where alleged discovery violation not discovered until after direct appeal).
v. incompetency of the defendant. State v. Debra A.E. 188 Wis.2d 111, 523 N.W.2d 727, 736 (1994).
f. Properly filed §974.06 petition tolls 1-year deadline for filing federal habeas petition, 28 U.S.C. §2244(d)(2), and may be necessary to exhaust claims to be raised on federal habeas petition.
g. Proper forum and categorization of ineffectiveness claims:
i. Ineffectiveness of post-conviction or appellate counsel may form the basis either for “sufficient reason” under §974.06(4) and Escalona-Naranjo, a substantive claim for relief, or both.
ii. Ineffectiveness of post-conviction or appellate counsel may constitute “sufficient reason” for not having raised a claim in a previous motion or appeal. So long as the underlying substantive claim is constitutional or jurisdictional, the proper forum for the underlying claim generally is the circuit court under §974.06.
iii. Ineffectiveness of appellate counsel, if raised as an independent, substantive claim for relief, must be raised in the court of appeals. State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992).
iv. Ineffectiveness of post-conviction counsel, if raised as an independent, substantive claim for relief, must be raised in the circuit court under §974.06. State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 556 N.W.2d 136 (Ct. App. 1996).
v. Distinction between “appellate” and “post-conviction” counsel -- If counsel failed to raise issue which was fully preserved in the record without need for a post-conviction motion, error is of appellate counsel. Otherwise, failure to raise claim is error of post-conviction counsel. B. Habeas Petition in Court of Appeals
1. See generally State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992).
2. Used to challenge ineffectiveness of appellate counsel when alleged errors or omissions took place in Court of Appeals (e.g., failure to raise or to properly brief issue preserved in circuit court, failure to file brief, failure to file No Merit brief).
3. No statutory deadline, but laches applies. State ex rel. Smalley v. Morgan, 211 Wis.2d 795, 565 N.W.2d 805 (Ct. App. 1997) C. Habeas Petition in Supreme Court
1. See generally State ex rel. Nichols v. Litscher, 2001 WI 119, 247 Wis.2d 1013, 635 N.W.2d 292; Schmelzer v. Murphy, 201 Wis.2d 246, 548 N.W.2d 45 (1996).
2. Used to challenge errors in Supreme Court and ineffectiveness of appellate counsel when alleged errors or omissions took place in Supreme Court, e.g., failure to file timely petition for review. Likely also would cover other attorney errors in Supreme Court, such as failure to raise or to properly brief issue preserved below, failure to file brief, etc. D. Habeas Petition in Circuit Court
1. See Wis. Stat. §782.01 et seq.; State ex rel. Szymanski v. Gamble, 2001 WI App 118, 244 Wis.2d 272, 630 N.W.2d 570 (Ct. App. 2001)
2. Not available when other remedies exist. E.g., State ex rel. Dowe v. Circuit Court for Waukesha County, 184 Wis.2d 724, 516 N.W.2d 714 (1994) E. Motion to Modify Sentence
1. Circuit Court has the inherent power to modify its sentencing judgment after the execution of the sentence imposed has commenced. E.g., Hayes v. State, 46 Wis.2d 93, 101, 175 N.W.2d 625 (1970); State v. Krueger, 119 Wis.2d 327, 351 N.W.2d 738, 741 (Ct. App. 1984).
2. Statutory time limits do not apply, but possibly limited by laches. Court has discretion to refuse to consider motion.
3. Limited to “new factors” grounds. Constitutional challenges must be raised under §974.06. See generally State v. Franklin, 148 Wis.2d 1, 434 N.W.2d 609, 611 (1989); Rosado v. State, 70 Wis.2d 280, 234 N.W.2d 69, 73 (1975) for “new factor” standards. F. Motion for Sentence Credit -- Wis. Stat. §973.155
1. Available if court failed to determine proper sentence credit at time of sentencing or inaccurately calculated sentence credit. G. Motion to Modify Conditions of Probation -- Wis. Stat. §973.09(3)(a)
1. “Prior to the expiration of any probation period, the court, for cause and by order, may extend probation for a stated period or modify the terms and conditions thereof.”
2. May be used to seek modification of any conditions of probation, including condition time and conditions imposed by the DOC, see State ex rel. Taylor v. Linse, 161 Wis.2d 719, 469 N.W.2d 201 (Ct. App. 1991), and may be used to seek reduction in term of probation.
3. Motion need not be based on a constitutional or statutory violation -- any good cause may be grounds for modification. H. Motion to Vacate Void Portion of Sentence or Probation
1. “Excessive sentence, errors cured. In any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings.” Wis. Stat. §973.13
2. “If a court imposes a term of probation in excess of maximum authorized by statute, the excess is void and the term of probation is valid only to the extent of the maximum term authorized by statute. The term is commuted without further proceedings.” Wis. Stat. §973.09(2m)
3. See State v. Spaeth, 206 Wis.2d 135, 556 N.W.2d 728, 736-37 (1996) (applying § 973.13 to sentence imposed upon conviction for OAR); State v. Flowers, 221 Wis.2d 20, 586 N.W.2d 175, 176-77, 178-79 (Ct. App. 1998) (§973.13 allows challenge to faulty repeater enhancement despite the defendant’s three prior post-conviction motions)
I. Writ of Error Coram Nobis
1. See generally State v. Heimermann, 205 Wis.2d 376, 556 N.W.2d 756 (Ct. App. 1996) 2. Very limited application: a. Discretionary with Court b. No other remedy available c. No custody requirement d. Requires both i. Error of fact unknown at time of trial and
ii. Knowledge of error at time of trial would have prevented entry of judgment e. No statutory deadline, but laches may apply
J. Writ of Certiorari -- Wis. Stat. §753.04
1. May be used to challenge execution of sentence but not imposition of it.
2. Used to challenge denial of parole. Coleman v. Percy, 96 Wis.2d 578, 588, 292 N.W.2d 615 (1980); Szymanski, supra.
3. Used to challenge prison discipline. State ex rel. Smith v. McCaughtry, 222 Wis.2d 68, 586 N.W.2d 63 (Ct. App. 1998).
4. Used to challenge probation revocation. State ex rel. Cramer v. Wisconsin Court of Appeals, 2000 WI 86, 236 Wis.2d 473, 613 N.W.2d 591.
5. Exhaustion of administrative remedies required. Smith, supra; see Hensley v. Endicott, 2001 WI 105, 245 Wis.2d 607, 629 N.W.2d 686; Wis Stat. §801.02(7)(b).
6. Generally must be filed within 45 days of “actual notice” of final administrative decision. Wis. Stat. §893.735(2); State ex rel. Purifoy v. Malone, 2002 WI App. 151, 648 N.W.2d 1. However, filing deadline is 6 months if defendant housed out of state. State ex rel. Frohwirth v. Wisconsin Parole Commission, 2000 WI App. 139, 237 Wis.2d 627, 614 N.W.2d 541. 7. Special pleading rules apply. Wis. Stat. §801.02(7)(c). Federal Procedures: A. Federal habeas corpus -- 28 U.S.C. §2254.
1. Federal habeas law is quite complex but not insurmountable. See generally, Meredith J. Ross, Federal Post-Conviction Relief from a State Conviction and Sentence Under 28 U.S.C. §2254 (LAIP 2001) (handout for inmates, copy attached); Henak, Relief After Direct Appeal, supra.
2. §2254 defines proper procedure for any challenge to the fact or duration of custody pursuant to the judgment of a state court, regardless whether one is challenging the imposition of the sentence or its execution. Montgomery v. Anderson, 262 F.3d 641, 643 (7th Cir. 2001); Walker v. O’Brien, 216 F.3d 626, 632-33 (7th Cir. 2000). 3. Considerations (discussed in more detail in LAIP paper): a. Custody required –includes probation or parole. b. Exhaustion of state remedies required
c. Generally must be filed within 1 year of date conviction becomes final, subject to tolling while state post-conviction motions or appeals are pending. d. Must be federal constitutional issue
e. Must meet high standards for success under AEDPA; unconstitutional custody alone insufficient. This is difficult, but not impossible. See Williams v. Taylor, 529 U.S. 362, 391 (2000); Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (granting habeas relief on ineffectiveness claim rejected by Wisconsin courts).
4. Habeas and in forma pauperis forms available from District Court Clerks. 5. Eastern District Rules mandate use of court-provided forms
6. Inmate must sign petition under penalty of perjury, even if drafted by attorney. Rule 2(c), Rules Governing Section 2254 Cases.
7. While SPD unlikely to exercise discretion to appoint counsel, District Court may appoint once petition filed. A form motion for appointment of counsel is attached. DISCLAIMER: This outline is not intended as an exhaustive statement of the law on the various post-conviction procedures discussed. Rather, it is only a starting point for your own research.
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