State ex rel. Milton Eugene Warren v. Michael Meisner, 2020 WI 55, 6/11/20, reversing and remanding an unpublished order of the court of appeals, 2019AP567; case activity (including briefs)

Seven years ago, the supreme court decided State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146. That opinion contained a couple of erroneous statements about the procedure for raising claims that postconviction counsel was ineffective. Both parties moved for reconsideration of these statements, which the court inexplicably denied more than a year later. Now with this decision, the court unanimously cleans up the misstatements in Starks, and gives the defendant his day in court.

We’ve written about this aspect of Starks before, covering the original decision (in a guest post by Rob Henak) and the denial of reconsideration. The Starks opinion had two big problems.

The simpler of the two was that it said a defendant seeking relief under Wis. Stat. § 974.06 has to have “exhausted his direct remedies”–that is, pursued Rule 809.30 postconviction relief or a direct appeal of his conviction–before filing under § 974.06.

This is wrong. A person who has never filed a postconviction motion under 809.30 or had a direct appeal can still seek relief under § 974.06; it’s just that the time for those direct remedies has to have expired. The Starks court’s error was in relying on language from an old case that predated the amendment of § 974.06. The court here straightens this out, and makes clear that a prior direct appeal or PCM is not a prerequisite for a § 974.06 motion.

The other problem with Starks is that it confused the previously-clear rule for where to bring a claim that postconviction counsel was ineffective. The old rule, established in two cases, was that the defendant should complain to the court where the ineffectiveness is alleged to have occurred. So, a claim about postconviction counsel should be raised in the postconviction court (i.e. the circuit court). State ex rel Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996). Only a claim that a lawyer erred during the appeal is properly directed to the court of appeals. See State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).

Starks through a wrench into things by saying the petitioner had filed in the wrong forum. He’d brought his claim–which was that his first lawyer, who represented him in an unsuccessful direct appeal, should have raised ineffective assistance of trial counsel–in the circuit court. SCOW’s analysis on this (unbriefed) point was lacking; it said in essence that the lawyer litigated only in the court of appeals, so that was where any ineffectiveness must have arisen. But this directly contradicted Rothering, for reasons SCOW had explained (and endorsed) just a couple years earlier:

¶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). In other words, any deficiency in failing to raise a claim that could only be raised in the circuit court is litigated in the forum where the claim should have been brought: the circuit court. This is true even if the lawyer that failed to act in the circuit court also represented the petitioner in the court of appeals.

The supreme court here reaffirms this rule and retracts those parts of Starks that contradicted it. So in this case, Warren was right to file in the circuit court, and that court was wrong (though understandably so, given Starks) to reject the claim on jurisdictional grounds.

That leaves the question of remedy, which is complicated by the procedural history of this litigation. After the circuit court denied his petition, saying it should have been filed in the court of appeals under Starks, Warren did just that: he filed an original habeas petition in the court of appeals. The court of appeals, though, said he should have appealed the circuit court’s denial of his original petition, rather than filing a new one. (🤦‍♀️.) Warren petitioned for review of the court of appeals’ denial of the writ, so that’s what’s before the court in this case: not the circuit court’s denial of his properly-filed petition. So how to get the case in the circuit court, where it belongs?

The supreme court finesses this on the theory that habeas is an equitable doctrine permitting a little creativity in remedies. It thus reverses the court of appeals’ denial of Warren’s habeas petition to that court, and remands the case back to the court of appeals with directions that the court of appeals send it to the trial court, which is to construe the habeas petition as a properly-filed § 974.06 petition. (¶¶47-51). Got that? Appellate procedure, freestyle.

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