Habeas Corpus: State & Federal (7th Circuit)

Updated 6/19/08
Usage note. If you come across a broken 7th Circuit link, you can find the opinion file with either the party name or case number, at the 7th Circuit site, or at Findlaw. As for F.3d cites: you can find them here.

State Remedy
   
(State) Habeas Remedy -- Challenge to Extradition: Standard of Review
State ex rel. Kenneth Onapolis  v. State, 2006 WI App 84, PFR filed 5/25/06
Pro se
Issue/Holding:   
¶5        A trial court’s order denying a petition for a writ of habeas corpus presents a mixed question of fact and law. State ex rel. McMillian v. Dickey, 132 Wis. 2d 266, 276, 392 N.W.2d 453 (Ct. App. 1986).  Factual determinations will not be reversed unless clearly erroneous. Id. Whether a writ of habeas corpus is available to the party seeking relief is a question of law, which we review independently. Id.; see State ex rel. Woods v. Morgan, 224 Wis. 2d 534, 537, 591 N.W.2d 922 (Ct. App. 1999). With rare exception, most published cases considering the issues of specialty and extradition in a habeas corpus challenge are adjudicated in federal courts and subject to plenary review. See United States v. Saccoccia, 58 F.3d 754, 767 (1st Cir. 1995). Where, as here, we are reviewing the trial court’s interpretation of the principles of specialty, we concur with the position of the State and shall apply a plenary or independent standard of review.
(State) Habeas Procedure, Generally
State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remanding summary order of court of appeals, reconsideration denied, 2006 WI 121
For Coleman: Brian Kinstler
Issue/Holding:
¶18      A petition for writ of habeas corpus commences a civil proceeding wherein the petitioner claims an illegal denial of his or her liberty. State ex rel. Zdanczewicz v. Snyder, 131 Wis.  2d 147, 151, 388 N.W.2d 612 (1986). A habeas petition must contain a statement of the legal issues and a sufficient statement of facts that bear on those legal issues, which if found to be true, would entitle the petitioner to relief. Wis. Stat. § 809.51(1); State ex rel. Smalley v. Morgan, 211 Wis.  2d 795, 802, 565 N.W.2d 805 (Ct. App. 1997). Habeas corpus relief is available only when the petitioner is being held in violation of a constitutional right or by a tribunal that lacks jurisdiction, and in either case, only when no other remedy at law is adequate to provide relief. Marberry, 262 Wis.  2d 720, ¶2. Habeas is an equitable remedy, United States ex rel. Smith v. Baldi, 344 U.S. 561 (1953), for which there is no constitutional right to counsel, State v. Evans, 2004 WI 84, ¶32, 273 Wis. 2d 192, 682 N.W.2d 784.
(State) Habeas Procedure -- Claim of Ineffective Assistance of Appellate Counsel -- Laches Bar
State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remanding summary order of court of appeals, reconsideration denied, 2006 WI 121
For Coleman: Brian Kinstler
Issue/Holding:
¶28      Prihoda, Sawyer, Lohr and Schafer all employ a three-element test where the first element is unreasonable delay in bringing the claim and the other two elements apply to the party asserting laches: lack of knowledge (that the claim would be brought) and effect (prejudice). In Neylan, McMillian, Smalley and Evans, the first element is the same, unreasonable delay, but the second element of the two-element analysis is set out as "actual prejudice." When the delay is not extensive, the movant's lack of knowledge that the claim would be brought is important in assessing prejudice. Neylan, 121 Wis.  2d at 491 n.5. Stated otherwise, actual prejudice includes the concept that the party raising laches did not have knowledge that the claim would be brought and that he suffered prejudice because of the delay in bringing the claim.

¶29      Because it may be difficult to quantify "actual prejudice," we conclude that the three-element analysis of Sawyer and Prihoda provides the better analytic framework for assessing a laches defense than does the two-element analysis set out in McMillian, Smalley and Evans. Carefully applied to the facts, assessing whether a party raising laches did not have knowledge that the claim would be brought will permit the circuit court to more fully apprise the effect of a claim that has been unreasonably delayed. For example, if the State had knowledge that Coleman would bring his claim of ineffective appellate counsel, but destroyed all the records that it possessed that were relevant to that claim, the State might be prejudiced in defending against the claim, but it would nevertheless fail on its laches defense.

Coleman was convicted and sentenced to 80 years in 1986. Appointed appellate counsel unsuccessfully pursued a sentence modification and then, after consultation with and agreement from Coleman, terminated his appointment in 1987 without filing an appeal. Then, 17 years later, Coleman filed a habeas petition in the court of appeals alleging that counsel had been deficient in not identifying a potentially meritorious and preserved suppression issue. (That is, the claim is not one of client abandonment but instead of identification of an issue already apparent in the record.)

First, a procedural aspect noted only in the barest of passing by the court: where, and by what mechanism, should an ineffective-assistance claim be brought? These waters were first muddied by State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 797-98, 565 N.W.2d 805 (Ct. App. 1997):

… Under Knight, a claim of ineffective assistance of appellate counsel is properly raised by petition for a writ of habeas corpus in the appellate court which heard the defendant's direct appeal. See Knight, 168 Wis.2d at 512-13, 484 N.W.2d at 541. However, under Rothering, where the alleged deficiencies relate to action or inaction by postconviction counsel, the ineffective assistance claim should be raised in the circuit court either by a petition for a writ of habeas corpus or a motion under § 974.06, STATS. See Rothering, 205 Wis.2d at 672-74, 556 N.W.2d at 138-39.
If Coleman's challenge is to postconviction counsel's failure to identify the suppression issue, then under Smalley it should have been raised by § 974.06 motion filed in the trial court. But if this failure is attributable to appellate counsel, then the habeas petition Coleman filed in the court of appeals was the proper way to go. But just which role was counsel occupying when he failed to take up the suppression issue? True, you can simply file an appeal raising an already-preserved issue, which would arguably make the omission attributable to appellate counsel. But there's nothing to prevent renewal of issue on postconviction motion, something that makes sense if there's going to be a postconviction motion anyway, as indeed there was; so, the omission could well be attributable to postconviction counsel. The problem lies with Rothering's stilted and often-blurred distinction between these categories -- which brings us back to Coleman.

Habeas, the court says without any elaboration, is the correct vehicle for raising Coleman’s claim: “Coleman has properly chosen the last form [i.e., habeas as opposed to § 974.06 motion] under which to seek relief from his convictions because his claim is based on an allegation of ineffective assistance of appellate counsel,” ¶16. At a minimum, this would seem to mean that failure to file an appeal where the record contains a preserved issue is a failure attributable to appellate counsel, and therefore is challenged via habeas in the court of appeals. Because Rothering involved an unpreserved issue, its distinction between types of counsel may well remain viable. In any event, the fault line between Rothering motions and habeas petitions (preserved vs. non-preserved issues) is at least arguably sharpened, if implicitly, by Coleman.

Smalley does take an explicit beating on its laches analysis, ¶25 ("While Smalley refers to laches and uses laches terminology, it appears to have conflated its analysis of the habeas petition's timeliness with the unreasonable delay element of laches."), and it may be that the result in that case is now in doubt (unexplained 8-year delay in filing habeas claim of client abandonment was unreasonable and for that reason alone review was barred). Note, however, the court's apparent approval of a timeliness analysis, as distinct from laches and as to which the habeas petitioner bears the burden of proof: "the decision places the burden of proof for timeliness of the petition on Smalley, which is in accord with reviewing timeliness in regard to a habeas petition," ¶25.

On to the merits. The “uncontroverted fact that Coleman knew of his claim for more than 16 years but … did nothing, year after year,” establishes that his “delay was unreasonable as a matter of law,” ¶33. But laches requires more, namely prejudice to the State, something the court of appeals impermissibly assumed, necessitating remand:

¶36      While the court of appeals' assumption may prove true, it is not the only possible outcome that could result from an inquiry of postconviction counsel. Therefore, it cannot be decided as a matter of law. To the contrary, appellate counsel may be able to recall or to reconstruct what happened during his communications with Coleman; what Coleman's response was; and how they reached the ultimate decision not to appeal. If he cannot, then the court of appeals is correct that the State suffered prejudice in being able to meet Coleman's claim of ineffective assistance of appellate counsel. But if counsel proves the assumption of the court incorrect, further proceedings on Coleman's claim of ineffective assistance will be required.
(The court of appeals lacks authority to make its own factual findings, and therefore must either use a special master or remand to the circuit court, ¶2 n. 2 and accompanying text.)

The 3-vote concurrence, incidentally, makes the cogent point that without fact-finding it can’t be said that the State proved unreasonable delay in filing the petition, ¶¶39, et seq. Yet that does seem to be exactly what the majority has done, if by the barest of margins. The best that might be said is that a delay significantly less than 16 years might lead to a different conclusion.

Generally, Statutory vs. Common Law – Challenge to Ch. 980 Commitment
State ex rel. Frederick Lee Pharm v. Bartow, 2005 WI App 215
For Pharm: Roisin H. Bell (Pro Bono)
Issue/Holding( Dicta): ¶12, n. 6:
The State also draws a distinction between statutory habeas corpus and common law habeas corpus, contending that the circuit court properly ruled that Pharm was not entitled to statutory habeas corpus relief because he was committed under a valid judgment of commitment. However, the State says that the circuit court failed to address the common law aspects of Pharm’s habeas corpus action. This form of habeas corpus relief lies for violations of the United States Constitution, State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 451, 593 N.W.2d 48 (1999), and is an equitable doctrine allowing a court to tailor a remedy applicable to the particular facts. State ex rel. Richards v. Leik, 175 Wis.  2d 446, 452, 499 N.W.2d 276 (Ct. App. 1993). 

We question the State’s contention that Pharm would not have been entitled to statutory habeas corpus relief if the Wis. Stat. ch. 980 commitment proceeding was barred by Pharm’s waiver of extradition and the IAD. Under that scenario, the Milwaukee County Circuit Court arguably would not have had the requisite competency to proceed in a ch. 980 commitment proceeding. Thus, the commitment order would not be valid. However, we need not address this question since we hold that Pharm’s rights under the IAD were fully honored and the State was not barred from seeking Pharm’s commitment pursuant to ch. 980. Thus, Pharm is not entitled to statutory or common law habeas corpus relief.

The procedural background is somewhat complex, but reduces to this: Pharm, while serving a sentence in Nevada, became subject to Wisconsin detainer on charges here. He waived extradition under the Detainer Act, got convicted and sentenced here and was returned to Nevada to continue serving that sentence. Wisconsin lodged a new detainer for our sentence, which caused his return here for that sentence when he reached parole release in Nevada. Upon parole in Wisconsin, rather than return him to Nevada for parole there (it was a life sentence), We committed him as an SVP under ch. 980. He took a direct appeal of that commitment, and lost, State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163. He now seeks, under habeas procedure, to collaterally attack the commitment on a claimed violation of the detainer act. The court allows the attack to proceed, but oddly doesn’t say why habeas is the correct vehicle, beyond a mystifying reference to statutory and common-law distinctions in the footnote quoted above. First, Fuentes simply doesn’t draw the claimed distinction; whatever the distinctions between statutory and common law procedure might be, they aren’t discernible there. Second, it is long-settled that common law habeas supports jurisdictional attacks. State ex rel. Morgan v. Fischer, 238 Wis. 88, 91, 298 N.W. 353 (1941) (“Nothing will be investigated on habeas corpus except jurisdictional defects amounting to want of any legal authority for the detention or imprisonment. Petition of Crandall for a Habeas Corpus (1874), 34 Wis. 177; Larson v. State ex rel. Bennett (1936), 221 Wis. 188, 266 N.W. 170.”). Of course, by “jurisdictional defects” is meant defects sufficiently severe to render the judgment void, but the point is that common law habeas supports non-constitutional error and thus the court’s distinction is too facile. Third, ch. 980 is, as we’ve been told over and over, a civil remedy – which means that § 806.07 (relief from judgment) is available for collateral attack. Indeed, Pharm launched a prior attack under that provision raising essentially the same argument he renews here; the court acknowledges that its prior rejection probably creates law of the case bar to this appeal, but would nonetheless be overlooked, ¶9 n. 5. It remains to be seen, then, whether and to what extent habeas supports collateral attack of a ch. 980 commitment. It should be kept in mind that habeas isn’t available where an adequate remedy at law exists. If § 806.07 is not an adequate remedy at law, the court doesn’t say why – which means that that provision ought to be looked to first, in preference to habeas. In other words, this case should not be read broadly to allow habeas as supporting collateral attack; could be that the court (albeit without saying so) followed the rule that pro se pleadings should be construed liberally or simply that the court wanted to reach the merits in a precedential manner and terminate repetitive litigation on the issue. It ought to kept in mind, too, that 28 USC § 2254 supports federal habeas review of an SVP commitment; see case summaries below.
Habeas Corpus -- Generally
State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999)
For Fuentes: Robert T. Ruth
Issue/Holding:
¶6. The availability of habeas corpus relief arises out of the common law and is guaranteed by both the state2 and federal3 constitutions as well as by statute.4 Although a habeas corpus petition normally arises out of criminal proceedings, it is a separate civil action founded upon principles of equity. State ex rel. Korne v. Wolke, 79 Wis. 2d 22, 26, 255 N.W.2d 446 (1977); State ex rel. Durner v. Huegin, 110 Wis. 189, 220, 85 N.W. 1046 (1901). This foundation empowers a court of equity to tailor a fair and just remedy to the given factual circumstances provided that the remedy does not itself violate the constitution. State v. Knight, 168 Wis. 2d 509, 520-21, 484 N.W.2d 540 (1992); State ex rel. Memmel v. Mundy, 75 Wis. 2d 276, 288, 249 N.W.2d 573 (1977).

¶7. Habeas corpus provides extraordinary relief and is available only where specific factual circumstances are present. First, the party seeking habeas corpus relief must be restrained of his or her liberty. See State ex rel. Hake v. Burke, 21 Wis. 2d 405, 124 N.W.2d 457 (1963); State ex rel. Wohlfahrt v. Bodette, 95 Wis. 2d 130, 132-33, 289 N.W.2d 366 (Ct. App. 1980). Second, the person's restraint must have been imposed by a tribunal without jurisdictional power over the person or subject matter, or the restraint must have occurred contrary to constitutional protections. State ex rel. Warrender v. Kenosha County Court, 67 Wis. 2d 333, 339, 231 N.W.2d 193 (1975); Wolke v. Fleming, 24 Wis. 2d 606, 613-14, 129 N.W.2d 841 (1964); Edwin E. Bryant, 9 Wisconsin Pleading and Practice § 84.03, p. 223-24 (3d ed. 1998). Third, the person improperly restrained must have no other adequate remedy available in the law. State ex rel. Dowe v. Waukesha County Circuit Court, 184 Wis. 2d 724, 729, 516 N.W.2d 714 (1994) (collecting cases).

Habeas Corpus -- Remedy for Court of Appeals' Clerical Error Causing Loss of Petition for Review Deadline
State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999)
For Fuentes: Robert T. Ruth
Issue/Holding: Court of appeals' "clerical error" (failure to mail appellate counsel a copy of its decision affirming conviction) which led to loss of deadline for filing petition for review in supreme court held remediable through writ of habeas corpus.
Habeas Corpus -- Generally
State v. Rodosvaldo C. Pozo, 2002 WI App 279, 258 Wis. 2d 796, 654 N.W.2d 12
Issue/Holding:
¶8. Writ of habeas corpus is an equitable remedy that protects a person's right to personal liberty by freeing him or her from illegal confinement. State ex rel. Dowe v. Waukesha County Circuit Court, 184 Wis. 2d 724, 728-29, 516 N.W.2d 714, 715-16 (1994). It arises in common law and is guaranteed by the state2 and federal3 constitutions, as well as by statute.4 Because it is an extraordinary writ, habeas corpus relief is available only where the petitioner demonstrates: (1) restraint of his or her liberty, (2) which restraint was imposed contrary to constitutional protections or by a body lacking jurisdiction and (3) no other adequate remedy available at law. State ex rel. Haas v. McReynolds, 2002 WI 43, ¶12, 252 Wis. 2d 133, 643 N.W.2d 771. Habeas corpus is not a substitute for appeal and therefore, a writ will not be issued where the "petitioner has an otherwise adequate remedy that he or she may exercise to obtain the same relief." Id. at ¶14; see also State ex rel. Doxtater v. Murphy, 248 Wis. 593, 602, 22 N.W.2d 685, 689 (1946).

¶9. Wisconsin Stat. § 974.06(8) sets out the statutory provisions which explain the availability, or lack thereof, of writ of habeas corpus in postconviction proceedings.5 Section 974.06(8) provides in relevant part:

A petition for a writ of habeas corpus ... shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced the person, or that the court has denied the person relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his or her detention.
Additionally, in a postconviction setting, a petition for writ of habeas corpus will not be granted where (1) the petitioner asserts a claim that he or she could have raised during a prior appeal, but failed to do so, and offers no valid reason to excuse such failure, State ex rel. LeFebre v. Israel, 109 Wis. 2d 337, 342, 325 N.W.2d 899, 901 (1982), or (2) the petitioner asserts a claim that was previously litigated in a prior appeal or motion after verdict. State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512, 514 (Ct. App. 1991) ("A matter once litigated may not be relitigated in a subsequent postconviction proceeding no matter how artfully the defendant may rephrase the issue.").
(Court bars Pozo's habeas claims because he cold have raised them on direct appeal; and also because he didn't provide a valid reason to excuse failure to raise them.)
Enlargement of Direct Appeal Deadline Based on Ineffective Assistance of Counsel -- Habeas in Court of Appeals as Exclusive Mechanism
State ex rel. Luis Santana v. Endicott, 2006 WI App 13
Pro se
Issue/Holding1: A claim that lapsed direct appeal rights should be restored on the basis of ineffective assistance of counsel must be sought via habeas filed in the court of appeals, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992):
¶1        … Although Santana may seek habeas relief on his ineffective assistance claim, he started in the wrong forum.  His petition faults appointed counsel for failure to pursue an appeal. State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 797-99, 565 N.W.2d 805 (Ct. App. 1997), unequivocally requires defendants to raise this type of ineffective assistance claim in a Knight [2] petition to this court. That said, we emphasize that the dismissal below is without prejudice and that Santana may still file a Knight petition.

…

¶4        … Santana complains that counsel failed to file a no merit appeal or to move for postconviction relief.  Rule 809.32 governs no merit appeals. Had counsel moved for postconviction relief, he would have done so pursuant to Wis. Stat. § 974.02, which is governed by the procedural rules in Rule 809.30. See § 974.02(1); Evans, 273 Wis. 2d 192, ¶29 (such a motion may precede or substitute for a notice of appeal and may be a prerequisite to direct appeal depending on whether the issues argued were previously raised). Thus, Santana should have brought a Knight petition to this court.

¶5        The State, citing Smalley, 211 Wis. 2d at 798-99, and Ford, 269 Wis. 2d 810, ¶¶36-37, observes that although this court accepts habeas petitions where appellate counsel is ineffective, we often remand to the trial court for fact finding and opines that “[i]t reasonably follows … that a trial court should be able to address a loss-of-direct-appeal claim in the first instance.” We disagree with the State’s suggestion that Smalley prescribes an optional procedure. …

¶6        Although we affirm the circuit court’s order dismissing Santana’s petition, we emphasize that he remains free to pursue the proper procedure by filing a Knight petition in this court. …

More than a little fussy, no? Not so much the abstract principle—court of appeals is exclusive forum to resolve Knight claim—but the result on these facts. The claim is in the court of appeals. Why can’t they just (liberally) construe the appeal to be a Knight petition, consistent with the idea that pro se claims are liberally construed so as to overcome technical defects? Santana will simply turn around, file the petition with the court of appeals, and they’ll have to review it anyway.
Issue/Holding2:
¶9        As for what does belong in the Knight petition, we observe that the procedures in Wis. Stat. Rule 809.51 apply. The petition should contain a statement of the issues and facts of controversy, the relief sought, and reasons why we should take jurisdiction. See Rule 809.51(1)(a)-(d); Smalley, 211 Wis. 2d 795 & n.7. The statement of facts should identify precisely what counsel did or failed to do. We note that the issue of waiver will also probably arise.  The State has posited that Santana waived his right to bring a loss-of-direct-appeal claim by waiting seven and one-half years to seek relief. Habeas relief is an equitable remedy subject to the doctrine of laches. Smalley, 211 Wis. 2d at 800. Santana should be prepared to address the State’s claim and to provide a factual basis for his delay. See id. at 802 (petition must allege facts demonstrating that the defendant sought prompt and speedy relief). [3]

¶10      Additionally, the petition must comply with the requirements of Wis. Stat. § 782.04.  … We wish in particular to emphasize the verification requirement, which many prisoners overlook. Verification entails signing the document in the presence of a notary public. See Kellner v. Christian, 197 Wis. 2d 183, 188-89, 539 N.W.2d 685 (1995). The verification requirement assures “that the statements contained therein are presented with some regard to considerations of truthfulness, accuracy and good faith,” and petitions not properly verified do not meet the requirements for a valid application. Maier v. Byrnes, 121 Wis. 2d 258, 262-63, 358 N.W.2d 833 (Ct. App. 1984).

What’s with the incorporation of statutory habeas procedure, § 782.04? Habeas is a common law as well as statutory procedure, State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, ¶6, 593 N.W.2d 48, and a Knight petition is a common law mechanism. Nothing wrong, of course, with requiring that a habeas petition filed in the court of appeals comply with Rule 809.51, but compliance with § 782.04 (statutory habeas) is deeply problematic—not least because statutory habeas may be filed in any court, supreme court, court of appeals, and circuit court, § 782.03. The court just got done telling us that a Knight habeas can’t be filed in circuit court, so how can it justify incorporating a procedure which applies to circuit court?

Note as well the court’s recognition that if Santana has a constitutional or jurisdictional issue, he may raise it with a § 974.06 motion (¶¶8, 11) – with no mention made, by the way, of State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). What this suggests, albeit obliquely, is that the E-N serial litigation bar simply does not apply where there has been no prior litigation. On this point, see State v. Anou Lo, 2003 WI 107, ¶44 n. 11 (“Our ruling would only be applicable in the situation where a criminal defendant actually filed a § 974.02 motion or pursued a direct appeal. Therefore, in Loop v. State, 65 Wis.  2d 499, 222 N.W.2d 694 (1974), where the defendant filed a § 974.06 motion challenging his conviction without having previously filed a § 974.02 motion or pursued a direct appeal, he was permitted to raise a constitutional issue not raised on direct appeal because no direct appeal had been sought. We agree with this analysis.”).

Enlargement of Direct Appeal Deadline Based on Ineffective Assistance of Counsel -- Habeas As Exclusive Mechanism
State v. Iran D. Evans, 2004 WI 84, reversing unpublished decision of court of appeals

For Evans: Robert R. Henak
Issue/Holding: The petition for writ of habeas corpus procedure mandated by State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992) is the exclusive mechanism for seeking reinstatement of direct appeal deadlines lost on account of ineffective assistance of counsel; the court of appeals erroneously exercises discretion when it enlarges the deadline via § 809.92(2) motion. ¶¶38, et seq.
Habeas Corpus -- Procedural Requirements -- Adequate Alternative Remedy
State ex rel. William E. Marberry v. Macht, 2003 WI 79, reversing 2002 WI App 133, 254 Wis. 2d 690, 648 N.W.2d 522
For Marberry: Donald T. Lang, SPD, Madison Appellate
Issue/Holding:
¶23. The extraordinary relief provided by the writ of habeas corpus is available only in limited circumstances and is subject to three prerequisites. Haas , 252 Wis. 2d 133, ¶12. First, the petitioner must be restrained of his liberty. Id. Second, the restraint must have been imposed without jurisdiction or contrary to constitutional protections. Id. Third, the petitioner must demonstrate that there are no other adequate remedies available in the law. Id. Absent a showing that all three criteria are met, the writ of habeas corpus will not issue. Id.
(The 3-vote lead opinion goes on to conclude that because mandamus would lie to compel observance of the right at issue in this particular instance – violation of the mandatory time limit for periodic reexamination under § 980.07 – an adequate remedy exists at law and habeas therefore isn’t supported. ¶27. The lead opinion does not, however, explain how mandamus – itself an extraordinary writ requiring no adequate remedy at law, Pasko v. City of Milwaukee, 2002 WI 33, ¶24, 252 Wis. 2d 1, 643 N.W.2d 72 – can serve as an adequate remedy at law. Perhaps the combination of mandamus and contempt affords a calculus which transforms an extraordinary remedy into a legal one. In any event the 3-vote concurrence explicitly disagrees that mandamus is a viable alternative, ¶37, but agrees for unstated reasons that the Marberry isn’t entitled to relief. Whether this is because habeas isn’t a suitable vehicle isn’t spelled out. In other words, all 6 voting justices agree that Marberry is not entitled to relief, but there is simply no majority view as to the rationale; it is therefore quite doubtful that the holding is that mandamus, even when combined with contempt, is a suitable alternative remedy at law.)
Habeas Corpus -- Procedural Requirements -- Adequate Alternative Remedy
State ex rel. Gerard Noel Haas v. McReynolds, 2002 WI 43, affirming unpublished court of appeals decision
For Haas: Robert G. Bernhoft
Issue/Holding: By voluntarily dismissing an appeal from denial of a first habeas petition, Haas was estopped from filing a second habeas petition in the court of appeals raising the same issue contained in the first petition. (That is, because Haas had an alternate, adequate remedy to challenging denial of the first petition -- appeal of that denial -- he's not entitled to a separate writ.) ¶¶ 14-20.
Habeas corpus - right to raise statutory violation.
State ex rel. Michael J. Hager v. Marten, 226 Wis.2d 687, 594 N.W.2d 791 (1999), affirming unpublished decision.
For Hager, Gerhardt F. Getzin, SPD, Wausau.
Issue/Holding: "(A) question of statutory interpretation may be considered on a writ of habeas corpus only if noncompliance with the statute at issue resulted in the restraint of the petitioner's liberty in violation of the constitution or the court's jurisdiction," ¶ 2.
Habeas Corpus -- Venue
State ex rel. Steven M. Rupinski v. Smith, 2007 WI App 4
For Rupinski: Daniel R. Drigot
Issue/Holding: ¶12 n. 3:
The State challenges the venue of Milwaukee County as improper because Rupinski is confined at the Oshkosh Correctional Institution located in Winnebago County. The State argues that, as a result, the writ was improperly filed under Wis. Stat. § 801.50(4).

  The proper venue for writ of habeas corpus shall be in the county “[w]here the plaintiff was convicted or sentenced if the action seeks relief from a judgment of conviction or sentence under which the plaintiff’s liberty is restrained” or “[w]here the liberty of the plaintiff is restrained if the action seeks relief concerning any other matter relating to a restraint on the liberty of the plaintiff.” Wis. Stat. § 801.50(4)(a), (b).

  However, a “court may at any time, upon its own motion, the motion of a party or the stipulation of the parties, change the venue to any county in the interest of justice or for the convenience of the parties or witnesses.” Wis. Stat. § 801.52.

  We note from an examination of the record that Rupinski moved the circuit court of Milwaukee to exercise its discretion pursuant to Wis. Stat. § 801.52 to permit the venue to be Milwaukee County. For reasons of judicial economy, the motion was granted. Based upon the record, the trial court did not erroneously exercise its discretion.

See also State ex rel Edwin C. West v. Bartow, 2002 WI App 42, ¶¶9-10 (transfer of habeas venue from county of confinement to county where judgment entered because latter has “all of the documents, regarding the judgment that’s being attacked,” satisfied § 801.52 standard for exercising discretion).
Habeas Corpus -- Venue
State ex rel Edwin C. West v. Bartow, 2002 WI App 42
For West: Leonard D. Kachinsky
Issue: Whether the court had discretion to order change of venue from Winnebago (county of current SVP confinement) to Milwaukee (county of commitment), on habeas challenge to the commitment.
Holding: Venue was proper in Winnebago under § 801.50(4)(b) (where petitioner is being restrained); the trial court’s transfer mistakenly relied on § 801.50(4)(a) (where petitioner was convicted or sentence, if seeking relief from conviction or sentence). ¶¶ 5-6. Nonetheless, a proper result will be sustained even if based on the wrong reason. ¶ 7. Transfer of venue is discretionary under § 801.52, 'in the interest of justice or for the convenience of the parties or witnesses.' In transferring venue, the trial court stressed that Milwaukee has 'all of the documents, regarding the judgment that’s being attacked'; this is enough to satisfy the § 801.52 standard for exercising discretion. ¶¶ 9-10.

Federal Remedy
(7th Circuit -- review of state (emphasis: Wisconsin) court judgments)
TOPICAL OUTLINE
PROCEDURE
Procedure -- Appellate
Procedure -- Appellate -- Certificate of Appealability
Procedure -- Appellate -- Certificate of Appealability: Necessity
Rufus West v. Schneiter, 7th Cir. No. 06-4359, 5/4/07
Issue/Holding: "we now join the other circuits that have considered this issue and hold that §2253(c)(1) requires a certificate of appealability for any appeal in a proceeding under §2255 or where 'the detention complained of arises out of process issued by a State court.'”
The court acknowledges that "(a) notice of appeal acts as a request for a certificate whether or not the prisoner files a separate application," but stresses: "a petitioner who relies on his notice of appeal is hard put to meet the statutory standard, for ... (a) notice of appeal does not give reasons, and a silent document rarely constitutes a 'substantial showing' of anything."
Procedure -- Appellate -- Certificate of Appealability: Ineffective Assistance of Counsel Claim Dennis Thompson, Jr. v. Battaglia, 7th Cir. No. 04-3110, 8/14/06
Issue/Holding: Because (c)ounsel's work must be assessed as a whole," an ineffective-assistance claim is a single ground for relief for certificate of appealability purposes, though R. 2(c), Rules Governing Section 2254 Cases, does require that the petitioner specify all grounds for relief along with supporting facts.
Procedure -- Appellate -- Certificate of Appealability: FRCP 60(b) Motion
Michael A. Sveum v. Smith, 7th Cir. No. 05-1255, 3/31/05
Issue/Holding: Denial of FRCP 60(b) motion to reopen, which was in effect a "mislabeled habeas corpus petition reasserting" previously rejected claim, required certificate of appealability. Holding adopted of Jones v. Braxton, 392 F.3d 683, 688 (4th Cir. 2004) (district court’s dismissal of motion, on ground it is unauthorized successive collateral attack, constitutes final order within 28 U.S.C. § 2253(c) and therefore requires certificate of appealability).
See Joseph Arrieta v. Battaglia, No. 04-3050, 8/24/06 for detailed discussion of Rule 60, especially its relation to unexhausted-claim petition (summary here). Also see, Gonzales v. Crosby, 125 S. Ct. 2641 (2005) (essentially limiting Rule 60(b) to attack on integrity of federal habeas proceeding, as opposed to substantive ground for relief). However, this also means that where the district court dismisses the petition without reaching the merits of the claims in the petition, the petitioner may file a Rule 60 to reopen without first obtaining judicial authorization, Butz v. Mendoza-Powers, 9th Cir No. 06-71137, 2/1/07.

And, albeit without citing Sveum, Carlos Curry v. U.S., 7th Cir No. 07-1658, 11/8/07: because court of appeals' permission is required for a successive petition, where "a Rule 60(b) motion to vacate judgment is really a successive postconviction claim," the district court lacks jurisdiction to rule on it without such permission; and any such ruling will be vacated.

Procedure -- Appellate -- Non-Final Order (Dismissal with Leave to Re-file After Exhausting State Remedies)
Alan O. Moore, Sr. v. Mote, 7th Cir. No. 03-3213, 5/17/04
Issue/Holding: Dismissal with leave to refile following exhaustion of state court remedies doesn't support a notice of appeal:
Generally, this court has jurisdiction only to review final judgments, 28 U.S.C. § 1291. The district court’s order dismissing the case without prejudice is not final because it explicitly contemplates the court’s continuing involvement in the case ....

This court has held that there are “special circumstances” under which the dismissal of a case without prejudice may constitute a final appealable order. See Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir. 2001). Special circumstances are present when it is clear that it is impossible for the plaintiff to amend the filing to remedy the problem that prompted the dismissal. See Furnace v. Bd. of Tr. of S. Ill. Univ., 218 F.3d 666, 669 (7th Cir. 2000). No special circumstances exist here because Moore can easily return to state court, conclude his pending action, and then submit the state court decision (either confirming or disproving the district court’s belief that state remedies remain available to Moore) to the district court. Cf. Strong v. David, 297 F.3d 646, 648 (7th Cir. 2002) (district court order is final because petitioner had exhausted all administrative remedies and there were no further state remedies available).

...

Moore now has two options. His safest course of action would be to return to state court and conclude his postconviction proceedings....

Moore’s second, and more risky, option is to ask the district court to enter a final judgment on its order dismissing the petition....

Moore reaffirmed (re: dismissal without prejudice to permit state court exhaustion), in James P. Dolis v. Chambers, 05-3781, 7/24/06.
Procedure -- Appellate -- Certificate of Appealability -- Untimely 2254 Petition
Terrance Bernard Davis v. Borgen, 7th Cir. 03-2354, 11/20/03
Issue/Holding: A certificate of appealability of dismissal of a habeas petition filed four years after the deadline is vacated:
To recap the statutory requirements: (1) A certificate of appealability may be issued only if the prisoner has at least one substantial constitutional question for appeal. 28 U.S.C. §2253(c)(2). (2) The certificate must identify each substantial constitutional question. 28 U.S.C. §2253(c)(3); Beyer v. Litscher, 306 F.3d 504 (7th Cir. 2002). (3) If there is a substantial constitutional issue, and an antecedent non-constitutional issue independently is substantial, then the certificate may include that issue as well. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Owens v. Boyd, 235 F.3d 356 (7th Cir. 2000). (4) Any substantial nonconstitutional issue must be identified specifically in the certificate. 28 U.S.C. §2253(c)(3). (5) If success on a nonconstitutional issue is essential (compliance with the statute of limitations is a good example), and there is no substantial argument that the district judge erred in resolving the non-constitutional question, then no certificate of appealability should issue even if the constitutional question standing alone would have justified an appeal. See Anderson v. Litscher, 281 F.3d 672 (7th Cir. 2002).

The certificate issued here does not satisfy these requirements. The district judge did not find that any of Davis’s constitutional arguments is substantial. The certificate does not specify any constitutional issue to be resolved in this court. The judge did not find that the statute of limitations issue is independently substantial, nor does the certificate list timeliness as an issue for appeal. Finally, because there is no substantial argument (no argument, period) that Davis’s petition is timely, it would be inappropriate to issue a certificate even if one or more constitutional contentions had been substantial, for it is pointless to brief the merits when the statute of limitations halts the proceedings at the threshold.

Procedure -- Appellate -- Certificate of Appealability
Bernard L. Beyer v. Litscher, 306 F.3d 504 (7th Cir. 2002)
Issue/Holding: Certificate of Appealability required by 28 U.S.C. § 2253(c)(3) must specifically identify a substantial constitutional issue. Declaration of purely statutory issue isn't enough, and it is incumbent on counsel to bring this defect to the appellate court's attention. Nonetheless, this appellant is allowed to proceed, though future litigants are cautioned: "Future petitioners and their lawyers should undertake to show that a substantial constitutional issue exists, however, lest the court of appeals conclude that the procedural error is harmless and a remand pointless."
Procedure -- Appellate -- Certificate of Appealability -- Prison / Jail Discipline
Clyde Piggie v. Cotton, 344 F.3d 674 (7th Cir. 2003)
Issue/Holding: Requirement of certificate of appealability doesn't apply to habeas challenge to state disciplinary proceeding, citing Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2002).
Rule reaffirmed: Edward D. Anderson v. Benik, No. 05-2323, 12/20/06 But for another circuit's rejection of this approach, creating a potentially cert-worthy split, see Medberry v. Crosby, footnote 10, 11th Cir. No. 02-11072, 11/25/03
Procedure -- Appellate -- Certificate of Appealability -- Erroneous Issuance
Darrell D. Cage v. McCaughtry, 305 F.3d 625 (7th Cir. 2002)
For Cage: Calvin R. Malone
Issue/Holding: "When we make a mistake and issue a certificate of appealability that specifies an improper ground, counsel for both sides, rather than indulging a fiction of judicial infallibility, should inform us before briefing begins and ask us to amend the certificate, which is within our power because even an 'unfounded' certificate of appealability confers jurisdiction on us."
Procedure -- Appellate -- Jurisdiction -- Timeliness of NOA -- Prison Mailbox Rule
Edmund Ingram v. Jones, Nos. 06-2766 & 06-2879, 11/14/07
Issue/Holding: If a prison has a "legal mailing system," and the inmate isn't obligated to pay postage for legal mail, then the notice of appeal may be deemed filed when deposited in the system even without prepaid postage. However, "if a prison does not have a legal mailing system, the prisoner is required to show, through a declaration or notarized statement, that his notice was timely filed in order to benefit from the mailbox rule." Note that, at least as of the date of this opinion, Waupun did not have a separate legal mailing system, so that the inmate's deposit of mail without prepaid postage failed to trigger the mailbox rule and resulted in an untimely NOA.
Procedure -- Appellate -- Recall Mandate
Michael Allen Lambert v. Buss, Nos. 03-1015 & 05-2610, 6/12/07
Issue/Holding: A motion to recall the mandate is subject to successive-petition restrictions.
Procedure -- Appellate -- Standard of Review
Procedure -- Appellate -- Standard of Review -- "Clearly Established" Precedent -- Supreme Court Reservation of Ruling on Issue
Donald Calloway v. Montgomery, No. 07-1148, 1/14/08
Issue/Holding: Where the Supreme Court has expressly declined to rule on the issue (or on one in a very similar) context) to the issue on habeas review, there is no clearly established precedent within the meaning of AEDPA. (Andrew Lockhart v. Chandler, 446 F.3d 721 (7th Cir 2006) (challenge to lack of knowledge of mandatory additional term of supervised release not cognizable) followed.)
Procedure -- Appellate -- Standard of Review -- State Court Adjudication on Merits
Allen A. Muth v. Frank, 412 F.3d 808 (7th Cir 2005)
Issue/Holding: AEDPA requirement of state court adjudication on merits requires neither "well-articulated or even correct decision"; state court need not offer any reasons, so that summary disposition would satisfy requirement. In short: it “is perhaps best understood by stating what it is not: it is not the resolution of a claim on procedural grounds.”
Followed: Joseph M. Malinowski v, Smith, 06-3075, 11/27/07 (state court's rejection of argument solely on basis of discussion of state privilege nonetheless represents adjudication on merits of due process challenge).
Procedure -- Appellate -- Standard of Review -- State Court Failure to Adjudicate Merits, Effect of
Larry W. Myartt v. Frank, 7th Cir No 04-2115, 1/21/05
Issue/Holding:
... AEDPA standards apply only to claims that were “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). In the instant case, the Wisconsin Court of Appeals did not address Myartt’s ineffective assistance claim, which is unsurprising because Myartt’s pro se filing failed to develop the claim or discuss relevant Sixth Amendment principles. In these circumstances, it is impossible to determine whether the state court’s decision involved an unreasonable application of Strickland. We agree with the district court that Myartt’s ineffective assistance of counsel claim was not adjudicated on the merits in any meaningful sense; consequently, we apply the pre-AEDPA standard of review, which requires us to “dispose of the matter as law and justice require.” Braun v. Powell, 227 F.3d 908, 917 (7th Cir. 2000).
Procedure -- Appellate -- Standard of Review, Generally
Alphonso Hubanks v. Frank, 04-1043, 12/22/04
For Hubanks: Robert J. Dvorak
Issue/Holding:
Habeas relief is appropriate pursuant to § 2254(d)(1) if the state court identified the right legal principle as determined by the Supreme Court but unreasonably applied that principle to the facts of the case. The standard for proving an unreasonable application of federal law, however, is more demanding than for proving an erroneous application of that law. Schaff v. Snyder, 190 F.3d 513, 523 (7th Cir. 1999). We review legal questions and mixed questions of law and fact de novo, but uphold decisions that are either “minimally consistent with the facts and circumstances of the case” or “one of several equally plausible outcomes.” Id. at 522-23. A state court’s findings of fact are presumed correct. Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir. 1999). The reasonableness of these findings can be overcome only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Procedure -- Appellate -- Standard of Review -- Successive Application, 28 U.S.C. § 2241(b) -- Pretrial Habeas Petition: De Novo Review of State Court Ruling
Chris Jacobs v. McCaughtry, 251 F.3d 596 (7th Cir. 2001)
Issue/Holding:
Jacobs now argues that the petition he wishes to file is not a second or successive collateral attack within the meaning of sec. 2244. We agree. Jacobs's first petition is properly classified as a sec. 2241 petition because it was filed pretrial and not while he was "in custody pursuant to judgment of a state court." ... And sec. 2244, by its terms, does not apply to petitions brought under sec. 2241. ...
See also discussion below, embellishing idea that a 2241 petition, unlike the typical, 2254 petition, supports de novo rather than deferential review.
Procedure -- Appellate -- Standard of Review -- State Court Reference to Federal Law
Theodore W. Oswald v. Bertrand, 7th Cir. No. 03-2092, 6/29/04, granting habeas relief on review of State v. Theodore Oswald, 2000 WI App 2, 232 Wis.2d 62, 606 N.W.2d 207
For Oswald: Jerome F. Buting
Issue/Holding:
Ordinarily it would be clear that the issue for the district court and us would be whether in turning down Oswald’s claim of constitutional error the state courts had made “an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). But this is only if the prisoner’s claim was adjudicated by the state court “on the merits.” § 2254(d). If not, the special deference to a state court’s determinations that is prescribed by section 2254(d)(1) goes by the board. Braun v. Powell, 227 F.3d 908, 916-17 (7th Cir. 2000); Moore v. Parke, 148 F.3d 705, 708 (7th Cir. 1998); Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir. 2003). The state appellate court discussed and disposed of Oswald’s claim that the jury selection procedure used in his case had denied him an impartial tribunal, but it did not discuss the claim with reference to federal law. No matter. So long as the standard it applied was as demanding as the federal standard, Mitchell v. Esparza, 124 S. Ct. 7, 10 (2003) (per curiam); Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); Reid v. True, 349 F.3d 788, 799-800 (4th Cir. 2003); Sellan v. Kuhlman, 261 F.3d 303, 311-14 (2d Cir. 2001)—and there is no suggestion that it was not, cf. Hammill v. State, 278 N.W.2d 821, 822 (Wis. 1979)—the federal claim is deemed adjudicated on the merits and its rejection therefore entitled in this habeas corpus proceeding to the deference prescribed by section 2254(d)(1).
Like effect: Conner v. McBride, 7th Cir. No. 03-1951, 7/20/04.
Procedure -- Appellate -- Standard of Review -- State Procedural Ground / Default
Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003)
Issue/Holding:
A federal court entertaining a petition for a writ of habeas corpus will not review a question of federal law if it determines that the state decision rests on a state procedural ground that is independent of the federal question and adequate to support the judgment. See Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002); Braun v. Powell, 227 F.3d 908, 912 (7th Cir. 2000). Simply stated, the independent and adequate state ground doctrine bars "'federal habeas when a state court [has] declined to address a prisoner's federal claims because the prisoner [has] failed to meet a state procedural requirement.'" Moore, 295 F.3d at 774 (quoting Coleman v. Thompson, 501 U.S. 722, 729-30 (1991)). In assessing whether a state court ruling is based on an "independent and adequate" determination of state law, the federal court must refer to the decision of the last state court to have ruled on the merits. See Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002); Brooks v. Walls, 279 F.3d 518, 522 (7th Cir. 2002). In this case, the last ruling on the merits by a Wisconsin state court is the May 19, 1999, decision of the Court of Appeals of Wisconsin. See R.11, Ex.F. We review de novo a district court's determination that an individual has procedurally defaulted a claim. See Moore, 295 F.3d at 774; Braun, 227 F.3d at 911- 12. In determining whether a claim has been procedurally defaulted, we look to Wisconsin law. See Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000) (stating that, in a federal habeas proceeding, state law controls whether a claim has been defaulted); Franklin v. Gilmore, 188 F.3d 877, 881 (7th Cir. 1999) (same).
The district court's procedural default ruling is reviewed de novo, Cedell Davis v. Lambert, 7th Cir. Case No. 02-2838, 11/4/04.
Procedure -- Appellate -- Standard of Review -- State Court Findings
Ward v. Sternes, 334 F.3d 696 (7th Cir. 2003)
Issue/Holding:
Unreasonableness also serves as the touchstone against which state court decisions based upon determinations of fact in light of the evidence presented are evaluated. 28 U.S.C. § 2254(d)(2). As is the case under § 2254(d)(1), a petitioner’s challenge to a decision based on a factual determination will not succeed if the petitioner merely evidences that the state court committed error. Instead, he must further establish that the state court committed unreasonable error. And § 2254(e)(1) provides a mechanism by which the petitioner can prove that unreasonableness. If the petitioner can show that the state court determined the underlying factual issue against the clear and convincing weight of the evidence, the petitioner has not only established that the court committed error in reaching a decision based on that faulty factual premise, but has also gone a long way towards proving that it committed unreasonable error. A state court decision that rests upon a determination of fact that lies against the clear weight of the evidence is, by definition, a decision “so inadequately supported by the record” as to be arbitrary and therefore objectively unreasonable. Hall, 106 F.3d at 749; cf. Miller-El v. Cockrell, 123 S. Ct. 1029, 1041-42 (2003) (rejecting the Fifth Circuit’s requirement that a petitioner prove the unreasonableness of the state court’s decision by clear and convincing evidence).
So much of standard of review case law discussion is (for obvious reasons) numbingly mechanistic boilerplate, that it is worth taking particular note of this discussion that departs dramatically from the norm, and nicely focuses on the importance of rigorous scrutiny:
In instructing jurors about their fact-finding function, we normally advise them to consider the entire record, not individual pieces of evidence standing alone.... Fact-finding is thus a dynamic, holistic process that presupposes for its legitimacy that the trier of fact will take into account the entire record before it.

What goes for juries goes no less for judges. In making findings, a judge must acknowledge significant portions of the record, particularly where they are inconsistent with the judge’s findings.... On occasion, an effort to explain what turns out to be un-explainable will cause the finder of fact to change his mind. By contrast, failure to take into account and reconcile key parts of the record casts doubt on the process by which the finding was reached, and hence on the correctness of the finding....

Failure to consider key aspects of the record is a defect in the fact-finding process.... When we determine that state-court fact-finding is unreasonable, therefore, we have an obligation to set those findings aside and, if necessary, make new findings.

Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004). See also Teti v. Bender, 1st Cir No. 06-2371, 11/8/07 (noting that methodology for review of and deference to state court findings remains unsettled).
Procedure -- Appellate -- Standard of Review -- State Court Findings, Need Not Be Based on Evidentiary Hearing for Deference under 28 USC § 2254(e)(1)
Mendiola v. Schomig, 224 F.3d 589 (7th Cir. 2000)
Issue/Holding:
The foundation of Mendiola's position--that only trial judges may make factual findings, and then only after hearings dedicated to the contested issue--is unsound. Sumner v. Mata, 449 U.S. 539, 546-47 (1981), holds that state appellate courts' findings are entitled to the same respect that trial judges' findings receive. What is more, § 2254(e)(1) does not require findings to be based on evidentiary hearings. This is a major difference between § 2254(e), part of the Antiterrorism and Effective Death Penalty Act of 1996, and its predecessor 28 U.S.C. (1994 ed.) § 2254(d). The former statute required deference to "a determination after a hearing on the merits of a factual issue" unless one of eight conditions was satisfied. Section 2254(e), by contrast, omits any mention of a hearing. If a state court's finding rests on thin air, the petitioner will have little difficulty satisfying the standards for relief under § 2254. But if the state court's finding is supported by the record, even though not by a "hearing on the merits of [the] factual issue", then it is presumed to be correct.
Procedure -- Appellate -- Standard of Review -- IAC Claim -- State Court's Misstatement of Defendant's Burden to Prove Prejudice -- De Novo Review of Prejudice
Russell Martin v. Grosshans, 7th Cir No 04-4247, 9/15/05, granting habeas relief, in unpublished decision of Wis COA
Issue/Holding:
... In its opinion, the Wisconsin Court of Appeals incorrectly placed the burden on Martin to “show that, but for defense counsel’s unprofessional errors, the result of the proceeding would have been different.” ... The Wisconsin court’s prejudice analysis was contrary to Strickland and is not entitled to deference; we therefore review the issue of prejudice de novo, applying the correct standard. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Procedure -- Appellate -- Standard of Review -- IAC Claim -- State Court Failure to Discuss Deficient Performance -- De Novo Review of That Portion of Federal Claim
Linnell Harding v. Sternes, No. 03-2672, 8/23/04
Issue/Holding: State court's failure to address deficient performance on a claim of ineffective assistance of counsel (state court rejected claim on basis of no prejudice) leads to de novo habeas review.
Like effect: Dugas v. Coplan, 1st Cir No. 04-1776, 10/31/05 ("Since the state court never decided the question of prejudice [on an IAC claim], we review that issue de novo").
Procedure - Appellate - Standard of Review - "Clearly Established Federal Law" - Remote Appearance by Counsel
Wright v. Joseph L. Van Patten, USSC No. 07-212, 1/7/08
Prior history: Joseph Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006), reinstated, No. 04-1276, 6/29/07, on remand from the Supreme Court "for further consideration in light of Carey v. Musladin, 549 U. S. ___ (2006)"; on habeas review of, unpublished opinion of Wis COA
For Van Patten: Linda T. Coberly
Issue/Holding:
Our precedents do not clearly hold that counsel’s participation by speaker phone should be treated as a ‘complete denial of counsel,’ on par with total absence. … Because our cases give no clear answer to the question presented, let alone one in Van Patten’s favor, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’ ” Musladin, 549 U. S.,at ___ (slip op., at 6) (quoting 28 U. S. C. §2254(d)(1)). Under the explicit terms of §2254(d)(1), therefore, relief is unauthorized.
The 7th Circuit's application, on remand from the Court, of Musladin to counsel's appearance by speaker phone at a plea proceeding (as tantamount to denial of counsel) is thereby reversed:
Unlike Musladin, this case does not concern an open constitutional question. The Supreme Court has long recognized a defendant’s right to relief if his defense counsel was actually or constructively absent at a critical stage of the proceedings. Neither § 2254 nor Musladin limits relief to the precise factual situations addressed in the Supreme Court’s previous cases. The technology employed in taking Van Patten’s no contest plea (the use of a speakerphone) may have been novel, but the legal principle presented by the case was not. Our 2006 opinion and judgment are reinstated.
Procedure -- Appellate -- Standard of Review -- "Unreasonable Application" / State Court Failure to Adjudicate Claim on Merits
Fairly W. Earls v. McCaughtry, 7th Cir. No. 03-2364, 8/16/04, granting habeas relief in unpublished decision of Wis. COA
Issue/Holding:
For one portion of the analysis below, we apply the pre- AEDPA standard of review because the State court did not adjudicate an aspect of a Federal claim on its merits. Walton v. Briley, 361 F.3d 431, 432 (7th Cir. 2004). That portion of the opinion deals with the prong of the Strickland test that considers whether an attorney’s performance was deficient. Under the pre-AEDPA standards we review questions of law and mixed questions of law and fact de novo. Dye v. Frank, 355 F.3d 1102, 1107 (7th Cir. 2004).
Like effect: Keith B. Canaan v. McBride, 7th Cir No 03-1384, 1/11/05 ("When a state court is silent with respect to a habeas corpus petitioner’s claim, that claim has not been 'adjudicated on the merits' for purposes of § 2254(d); and in that event, review is under the general standard of 28 U.S.C. § 2243 rather than the more restrictive AEDPA standard).
Procedure -- Appellate -- Standard of Review -- "Unreasonable Application"
Henderson v. Briley, 00-3834, 1/16/04
Issue/Holding:
According to 28 U.S.C. § 2254(d)(1), a federal court may grant a petition for a writ of habeas corpus only if the state court’s adjudication of the relevant claims “resulted in a decision that . . . involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States.” As we noted in our original opinion and as the Supreme Court reiterated in Visciotti, review under this statute is “severely restricted.” Henderson, 296 F.3d at 545 citing Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir. 1999). In Visciotti, the Court held that “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied Strickland incorrectly.” Visciotti, 537 U.S. at 24-25. This means that the question before a federal court on collateral review under this part of the statute is only whether the state court’s decision was so far out-of-bounds as to be “unreasonable.” In making that decision, we must take into account both the procedural and the substantive aspects of the state court’s action.
Also see Barrow v. Uchtman, 7th Cir No 03-3622, 2/15/05.
Procedure -- Appellate -- Standard of Review -- "Unreasonable Application"
Frederick G. Jackson v. Frank, 02-1979, 11/6/03, reversing Jackson v. Litscher, 194 F.Supp.2d 849 (E.D. Wis 2002), on review of State v. Jackson, 229 Wis. 2d 328, 600 N.W.2d 39 (Ct. App. 1999)
For Jackson: Melinda A. Swartz, Milwaukee Appellate
On-line brief
Issue/Holding:
... Jackson does not suggest that the decision of the Wisconsin appellate court was “contrary to” clearly established federal law, but instead contends that it unreasonably applied clearly established federal law to his case. This is a difficult standard to meet; “unreasonable” means “something like lying well outside the boundaries of permissible differences of opinion.” Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002). We have held that under this criterion, habeas relief should not be granted if the state court decision can be said to be one of several equally-plausible outcomes. Boss v. Pierce, 263 F.3d 734, 742 (7th Cir. 2001). Indeed, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable.” Lockyer v. Andrade, 123 S.Ct. 1166, 1175 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 411, 409 (2000)).

Within the framework of § 2254(d)(1), we review the district court’s grant of the petition de novo. Dixon v. Snyder, 266 F.3d 693, 700 (7th Cir. 2001). And “[w] hether the state court’s holding involved an ‘unreasonable application’ of clearly established federal law, as determined by the Supreme Court, is a mixed question of law and fact that we traditionally also review de novo but with a grant of deference to any reasonable state court decision.” Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir. 1999) (emphasis in original).

Procedure -- Appellate -- Standard of Review -- "Unreasonable Application"
Vonaire T. Washington v. Smith, 219 F.3d 620 (7th Cir. 2000)
For Washington: Robert R. Henak
Issue/Holding:
The analysis under the "unreasonable application of" clause, however, seems broader in that it allows a federal habeas court to grant habeas relief whenever the state court "unreasonably applie[d] [a clearly established] principle to the facts of the prisoner's case." Williams, 120 S. Ct. at 1523. But, lest we think that this provides us grounds for independent review of state court decisions on questions of federal law, the Supreme Court cautions that we must bear in mind that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 1522 (emphasis in original). When determining if a state court decision "involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States," it seems that we are not permitted to substitute our independent judgment as to the correct outcome--as we could in a context, for example, where we review a federal district court decision de novo. Rather, a federal habeas court operating pursuant to sec. 2254(d)(1) must only ask if the state-court decision was reasonable. Or, to put it slightly differently, we must determine that the state-court decision was both incorrect and unreasonable before we can issue a writ of habeas corpus. See id.
Procedure -- Appellate -- Standard of Review -- 28 USC § 2254 Review of Prison Discipline
David Pannell v. McBride, 306 F.3d 499 (7th Cir. 2002)
Issue/Holding: "(T)he deferential lens prescribed by 28 U.S.C. § 2254(d)(1)" only applies to a state court's adjudication on the merits; because a prison disciplinary board is not a "court," review on federal habeas of its determination is de novo.
Followed, Shawn Johnson v. Finnan, No. 06-1509, 11/2/06.
Implications are much broader than the review-regime: throwing disciplinary proceedings outside the statutory strictures applying to state "court" adjudications also means that habeas review of prison discipline isn't bound by the same time-limit rules; see cases under that topic.
Procedure -- Appellate -- Standard of Review -- Absence of Controlling Supreme Court Precedent: Judge's Sua Sponte Duty to Dismiss Juror
Darrell D. Cage v. McCaughtry, 305 F.3d 625 (7th Cir. 2002)
For Cage: Calvin R. Malone
Issue/Holding: Because the Supreme Court has never announced a rule obliging a trial judge to dismiss a juror for cause in the absence of objection to the juror, habeas may not be premised on such a claim.
Procedure -- Appellate -- Standard of Review -- Harmless Error
Obadyah Ben-Yisrayl v. Davis, 431 F3d 1043 (7th Cir. 2005)
Issue/Holding:
... When the state court concludes that any error was or would be harmless, that finding is subject to the same standard of review as is any other legal conclusion—de novo. Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per curiam). That is, we must accept it unless it is contrary to or represents an unreasonable application of clearly established federal law. Mitchell, 540 U.S. at 17-18. In Chapman v. California, 386 U.S. 18 (1967), the Supreme Court set forth the test for determining whether a constitutional error is harmless. The test is whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at 24. If the error complained of contributed to the verdict obtained, then the error is not harmless. Id.
The court had previously employed a 2-step process of harmless error analysis: first determine whether the state court decision was contrary to or an unreasonable application of Chapman v. California, 386 U.S. 18 (1967); if so, then the error must be tested under Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (on collateral review the question is whether a constitutional error had a "substantial and injurious effect or influence in determining the jury's verdict"), Harry Aleman v. Sternes, 320 F.3d 687 (7th Cir. 2003). As another circuit decision puts it, Ben-Yisrael seems to have sub silentio overruled Aleman on this point: Eddleman v. McKee, 6th Cir No. 05-1493, 12/14/06. But see Inthavong v. Lamarque, 9th Cir No. 03-57075, 8/23/05 (following Aleman, and collecting cases). Eddleman also raises the somewhat counter-intuitive idea that "deference is weaker when a state court found an error to be harmless than when it found no error at all"; thus, review of found error continues to be made under the Brecht regime. This is, it should be noted, an issue on which the circuits have split, thus creating the potential for cert. review. See generally Gutierrez v. McGinnis, 2nd Cir. No. 03-2560, 11/15/04, cataloging split in fn. 6, and holding: "Mitchell signals, and we therefore hold, that when a state court explicitly conducts harmless error review of a constitutional error, a habeas court must evaluate whether the state unreasonably applied Chapman. We do not presently reach the issue of whether or how to apply Brecht where the state court has not engaged in harmless error review, as, of course, those facts are not before us." To same effect, see another 2nd Circuit case decided two days later, amended file posted 12/7/04, Zappulla v. People, 2nd Cir No. 03-2793 (dissent noting, fn. 3: "The majority’s opinion might be read to hold that a determination of objective unreasonableness by itself warrants granting a writ of habeas corpus." And collecting cases from other circuits, id., which, "however, have concluded that a second step of analysis is required," i.e., a Brecht analysis).
Procedure -- Default/Waiver
Procedure -- Default/Exhaustion -- Judicial Bias (Taking Bribes)
Anthony Guest v. McCann, No. 04-3736, 1/18/07
Issue/Holding:
In order to demonstrate cause for failure to exhaust, Guest must demonstrate that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” See McCleskey v. Zant, 499 U.S. 467, 493 (1991) (quoting Murray v. Carrier, 477 U.S. 478 (1986)). The Court in McCleskey identified three types of “objective factors” that would constitute sufficient cause: (1) “interference by officials that makes compliance . . . impractical”; (2) constitutionally ineffective assistance of counsel; and (3) “a showing that the factual or legal basis for a claim was not reasonably available to counsel.” Id. The third factor is applicable here. The scattered news items and court filings identified by the respondent were insufficient to put Guest on notice. We cannot say that the factual basis for a judicial bias claim was “reasonably available” to counsel on the basis of the items cited by the respondent. A prisoner is not necessarily expected to be aware of even the most obscure news stories which might expose the basis for a claim of unconstitutional imprisonment. The district court did not address the question of actual prejudice, and we need not either since it is effectively subsumed by Guest’s substantive claim. There is no harmless error in a judicial bias case. See Bracy v. Schomig, 286 F.3d 406, 414 (7th Cir. 2002).
Procedure -- Default/Exhaustion -- Sentence Credit
Edward D. Anderson v. Benik, No. 05-2323, 12/20/06
Issue/Holding:
In state court, Anderson relied solely upon Wisconsin law requiring the application of pre-sentence credits. ... Therefore, we hold, as the district court did, that Anderson’s claims are procedurally defaulted.

Despite this procedural default, we may hear Anderson’s claims if he either demonstrates cause for his default and prejudice resulting therefrom, or that a miscarriage of justice will result if we do not consider the merits of his case. ... Anderson has procedurally defaulted, and because he has not even alleged that he meets the requirements for these exceptions, we will not reach the merits of his claims.

Procedure -- Waiver -- No Contest/Guilty Plea: Double Jeopardy Claim
James Gomez v. Berge, No. 04-4051, 1/12/06
Issue/Holding:
However, a defendant does not necessarily waive all constitutional claims when he enters a plea of guilty or no contest. Double jeopardy claims are one example. A plea of guilty or no contest does not forgive the unconstitutionality of an indictment. Menna v. New York, 423 U.S. 61, 63 (1975). ...

But the Supreme Court in Menna did not hold that a double jeopardy claim may never be validly waived. Menna, 423 U.S. at 63 n.2. In fact, double jeopardy rights may be waived by failing to preserve the issue for appeal. Peretz v. United States, 501 U.S. 923, 936 (1991) (citing with approval United States v. Bascaro, 742 F.2d 1335, 1364-65 (11th Cir. 1984) (holding that failure to raise the issue of double jeopardy at trial results in a waiver of that claim)). Here, when Gomez entered his plea, he did not preserve the double jeopardy issue for appeal. Rather, he entered an unconditional plea of no contest. His double jeopardy claim was waived.

Procedure -- Waiver -- No Contest/Guilty Plea: Denial of Self-Representation Claim
James Gomez v. Berge, No. 04-4051, 1/12/06
Issue/Holding: A no contest plea, like a guilty plea, waives the right to challenge precedent constitutional violations such as, in this instance, the claimed denial of right to self-representation.
Procedure -- Default / Exhaustion -- "Fairly Presents" Claim to State Court
James P. Harrison v. McBride, 04-1398, 10/27/05
Issue/Holding1: Four-part test of Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001) survives Baldwin v. Reese, 541 U.S. 28 (2004):
1) whether the petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; 3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and 4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation.
Issue/Holding2: By clearly presenting the federal nature of his claim on direct appeal to the Indiana supreme court, Harrison preserved his habeas claim:
Thus, the Supreme Court of Indiana did not have to read through all of the lower court opinions to understand that Mr. Harrison was raising a federal claim. The federal nature of the claim was articulated in his brief before the Supreme Court of Indiana, and, in support of that claim, Mr. Harrison explicitly referred the state supreme court to the areas in the record supporting his claim—as well as to prior briefing of the issue in the Supreme Court of Indiana itself. These factors clearly distinguish the present situation from Reese, and we conclude that Reese does not govern the petition presently before us.
Litigant may not present argument by incorporation in petition for review, in absence of state rule allowing same, James T. Lockheart v. Hulick, 7th Cir No. 04-3754, 4/12/06.
Procedure -- Default/Forfeiture -- Ineffective Assistance of Counsel Claim
Peter Lewis v. Sternes, 7th Cir No 03-4013, 12/6/04
Issue/Holding:
As Lewis suggests and the State concedes, if his trial and/or his appellate attorneys were ineffective for failing to present these claims at trial and on direct appeal of his conviction, then their sub-par representation might supply cause for his procedural default of these claims. However, a claim of ineffectiveness must itself have been fairly presented to the state courts before it can establish cause for a procedural default of another claim. Edwards v. Carpenter, 529 U.S. 446, 452-54, 120 S. Ct. 1587, 1591-92 (2000). As we conclude below, Lewis procedurally defaulted his ineffectiveness claims in the Illinois courts. Consequently, his attorneys’ alleged ineffectiveness cannot excuse the default of Claims 1 and 3. Lewis alternatively has not attempted to demonstrate the possibility that a miscarriage of justice will occur if these claims are not heard. Accordingly, the merits of these claims cannot be entertained on habeas review.
Procedure -- Default and Exhaustion Requirement, Compared
Perruquet v. Briley, 7th Cir. No. 02-2981, 11/17/04
Issue/Holding: Exhaustion requires that the petitioner "fairly present" the constitutional claims to the state court; where that has not been done and further state remedy exists, the exhaustion doctrine precludes federal relief on the unexhausted claim. But where state remedy no longer exists, "the separate but related doctrine of procedural default" inhibits federal review.
... Thus, when the habeas petitioner has failed to fairly present to the state courts the claim on which he seeks relief in federal court and the opportunity to raise that claim in state court has passed, the petitioner has procedurally defaulted that claim. ... The procedural default doctrine does not impose an absolute bar to federal relief, however. ... A procedural default will bar a federal court from granting relief on a habeas claim unless the petitioner demonstrates cause for the default and prejudice resulting therefrom, ... or, alternatively, he convinces the court that a miscarriage of justice would result if his claim were not entertained on the merits ....
Procedure -- Default -- Waiver by State
Perruquet v. Briley, 7th Cir. No. 02-2981, 11/17/04
Issue/Holding:
A petitioner’s procedural default does not deprive the federal court of jurisdiction over his habeas petition; rather, it is an affirmative defense that the State is obligated to raise and preserve, and consequently one that it can waive. ... Such a waiver may be explicit or implicit. ... Some courts have construed section 2254(b)(3)’s express-waiver requirement to apply to procedural default defenses arising from the petitioner’s failure to properly exhaust his remedies in state court while those remedies remained open to him. ... Other courts, noting the distinctions between the exhaustion and procedural default doctrines, have concluded that section 2254(b)(3) applies only when the State’s defense can accurately be labeled one of exhaustion rather than procedural default, i.e., where the state courts remain open to the petitioner and he can still exhaust his state remedies. ... We need not consider which of these two conflicting lines of authority is correct ....

...

What we have, then, is a simple failure of the State to assert a procedural default when it answered Perruquet’s habeas petition. The State’s silence on the subject of procedural default is normally not enough, standing alone, to demonstrate the intent to relinquish the defense that is the essence of true waiver. ...

...

At the same time, there are precedents from this circuit and others that recognize a federal appellate court’s discretion to address a procedural default even when the State has raised it for the first time on appeal....

...

We wish to emphasize that we are electing to address the State’s procedural default defense, notwithstanding its failure to assert the defense below, as a matter of discretion, and that we are by no means suggesting that this court or the district courts should routinely overlook the forfeiture of a procedural default defense. ... But the decision whether to assert an affirmative defense like procedural default lies with the Illinois Attorney General in the first instance, Bonner v. DeRobertis, supra, 798 F.2d at 1066 & n.3, and in the ordinary course of events, her failure to raise the defense in a timely manner will result in a forfeiture. That said, we proceed to consider whether Perruquet fairly presented his due process claim to the Illinois courts.

See also: Keith B. Canaan v. McBride, 7th Cir No 03-1384, 1/11/05 ("The State’s silence is significant because by failing to object to Canaan’s claim on procedural default grounds, the State has waived (or, more properly, forfeited) this argument"; court reiterates idea that "waiver of waiver" is "well-established doctrine); Peter Lewis v. Sternes, 7th Cir No 03-4013, 12/6/04 (citing Perruquet for idea that default is affirmative defense that State can waive same as any other; but adding that "waiver in the true sense occurs when a party intentionally relinquishes a known right," and finding no waiver where the State belatedly "awoke to its additional theories of procedural default").

BUT NOTE: The Supreme Court has since held that a district court has discretion to overlook a state's failure to plead a violation of the limitation period for filing the petition, and may dismiss the petition for that violation, Day v. McDonough, No. 04-1324, 4/25/06. See also Adell Jones v. Hulick, 7th Cir No. 04-2759, 6/1/06 (court allows statute of limitations defense to be raised for first time on appeal, where issue not difficult and facts established). But compare: Anthony Grigsby v. Cotton, No. 04-3356, 8/1/06 ("we must decide whether 'the interests of justice' require a resolution of the merits of a petition despite procedural defenses raised for the first time on appeal"; court declines to consider State's assertion of petition's untimeliness, where issue "was clear at the time the state filed its response").

Procedure -- Default / Exhaustion -- "Fairly Presents" Claim to State Court
Perruquet v. Briley, 7th Cir. No. 02-2981, 11/17/04
Issue/Holding: (Petitioner's citation, to state courts, of only state cases that did not themselves rely on federal constitutional analysis, amounted to default of an asserted federal basis for the claim:)
A petitioner fairly presents his federal claim to the state courts when he articulates both the operative facts and the controlling legal principles on which his claim is based. E.g., Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004). He need not “cit[e] ‘book and verse on the federal constitution.’ ” Picard v. Connor, supra, 404 U.S. at 278, 92 S. Ct. at 513 (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)). But he must, in some manner, alert the state courts to the federal underpinnings of his claim. Duncan v. Henry, supra, 513 U.S. at 365-66, 115 S. Ct. at 888. In deciding whether the state courts were so alerted, we look to a number of factors, including: “ ‘(1) whether the petitioner relied on federal cases that engage in constitutional analysis; (2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; (3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and (4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation.’ ” Sweeney, 361 F.3d at 332 (quoting Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001)). “ ‘[T]he presence of any one of these factors . . . does not automatically avoid a waiver; the court must consider the facts of each case.’ ” Momient-El v. DeTella, supra, 118 F.3d at 539 (quoting Verdin v. O’Leary, 972 F.2d 1467, 1474 (7th Cir. 1992)).
Brad Lieberman v. Thomas, 05-3922, 10/10/07 (state challenge that "(a)t its core" asserted that "state trial court failed to follow a state law procedure" didn't fairly present federal constitutional issue and thus procedurally defaulted latter; "single and undeveloped use of the term "constitutional" insufficient). But see Jackson v. Edwards, 2nd Cir No. 03-2805 (petitioner's reliance on state law to argue entitlement to rejected justification instruction "necessarily presented his due process claim, because the state law claim was not merely similar but was virtually identical to the federal claim).
Procedure -- Default -- Exhaustion Requirement -- "Meaningful Opportunity" for State Court Ruling
Linnell Harding v. Sternes, No. 03-2672, 8/23/04
Issue/Holding:
Mr. Harding now asserts a violation of his Sixth and Fourteenth Amendment rights. In contrast to his briefs on direct appeal, Mr. Harding now relies upon federal cases discussing federal law. In his state court brief, he had included only an introductory sentence making a passing reference to his right to present evidence and his right to a “fair trial.” This reference was not sufficient “to give the state courts a meaningful opportunity to pass upon the substance of the claims later presented in federal court.” Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001) (citations omitted) (“A mere ‘passing reference’ to a constitutional issue certainly does not suffice.”). Nearly every portion of his state court argument pointed to a state evidentiary issue.
The lesson's pretty simple: the federal basis for the claim has to be identified in the state court litigation. Contrast, for example, Reutter v. Crandel, 109 F.3d 575, 577-78 (9th Cir. 1997) (asserted denial of "fair confrontation," bolstered by cites to U.S. Supreme Court Confrontation Clause cases exhausted confrontation claim) with Casey v. Moore, 9th Cir. No. 03-35294, 10/12/04 (mere reference to "fair trial" insufficient). Note, though, authority for the idea that where the claim is phrased in a particular enough way, it may well satisfy exhaustion requirement without reference to federal authority Verdin v. O'Leary, 972 F.2d 1467, 1479-80 (7th Cir. 1992) (claimed denial of "right to be present at all critical stages of trial" "particular enough to call to mind" and therefore to exhaust Sixth Amendment basis of claim). That said, Casey cautions that Verdin may no longer be viable in light of Duncan v. Henry, 513 U.S. 364 (1995) ("'essentialy the same' standard is no longer viable" to exhaust claim). Again, the lesson is simple: identify the federal nature of the claim in state court, and you won't have to fight an unnecessary exhaustion battle on federal habeas.

Also see Howell v. Cox, per curiam, USSCt No. 03-9560, 1/24/05 (federal nature of claim insufficiently raised in state court: "Petitioner's brief in the State Supreme Court did not properly present his claim as one arising under federal law. In the relevant argument, he did not cite the Constitution or even any cases directly construing it, much less any of this Court's cases.").

Procedure -- Default -- Exhaustion Requirement -- "Meaningful Opportunity" for State Court Ruling
Fairly W. Earls v. McCaughtry, 7th Cir. No. 03-2364, 8/16/04, granting habeas relief in unpublished decision of Wis. COA
Issue/Holding:
We briefly address an issue of procedural default raised by the government regarding Earls’ counsel’s failure to redact the videotape. The government argues that Earls failed to raise his claim in his brief for the State appellate court and that omission “deprived the Wisconsin Court of Appeals the opportunity to address this claim separately.” Br. of Respondent-Appellee at 26; see also Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001) (stating a petitioner must fairly present a claim so that the state court has a “meaningful opportunity” to address it). This argument is baseless. Earls brief before that court explicitly states, in its argument labeled “Earls’ Counsel was Ineffective,” that: “Mr. Earls was denied the effective assistance of counsel at trial guaranteed by the Sixth Amendment to the United States Constitution . . . by his counsel’s failure to . . . redact the videotape to exclude Ghilardi’s comments about Earls.” Docket 10: Exhibit B at 28. The brief goes on to discuss and apply the Strickland test. Id. The Wisconsin Court of Appeals then addressed the claim in paragraphs 3- 7 of its resulting opinion. We find Earls’ claim was not procedurally defaulted.
Procedure -- Default -- Exhaustion Requirement -- "Meaningful Opportunity" for State Court Ruling
Charles E. Sweeney, Jr. v. Carter, 361 F.3d 327 (7th Cir 2004)
Issue/Holding:
... We can reach the merits only by first satisfying ourselves that Sweeney gave the Indiana courts a “meaningful opportunity to pass upon the substance of the claims later presented in federal court.” Chambers v. McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001); see also 28 U.S.C. § 2254(c); O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999)....

... Fair presentment requires a petitioner to put forward operative facts and controlling legal principles. Whether she has done so depends on several factors, including: “(1) whether the petitioner relied on federal cases that engage in constitutional analysis; (2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; (3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and (4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation.” ...

... On the one hand, we have found that the fact that two different claims arise from a common set of facts is not enough to avoid default.... On the other hand, “a mere variation in legal theory” does not automatically lead to a finding of failure to exhaust. ... Thus, a petitioner may reformulate her claims so long as the substance of the claim remains the same....

... Here, Sweeney’s underlying legal theory and the facts on which it is based have remained the same throughout his post-conviction odyssey. This fact serves to distinguish Sweeney’s situation from cases involving more dramatic shifts in the underlying legal theory....

The Indiana Supreme Court had squarely before it the question whether the Strickland rule relating to ineffective assistance of counsel should be extended to counsel’s role in Sweeney’s initial set of encounters with the police and prosecutors. This is enough to preclude a finding of procedural default. See Wilson, 243 F.3d at 327-28.

Procedure -- Default/Forfeiture -- Claims Involving Structural Error
Jerry Ward v. Hinsley, 7th Cir. No. 03-4342
Issue/Holding;
We do not accept Ward’s suggestion that a federal habeas court may review a prisoner’s federal constitutional claims, notwithstanding the prisoner’s failure to raise the claims before the state court, so long as the claimed right rises to the magnitude of a structural error. Contrary to Ward’s assumption, the procedural default doctrine does not seek to distinguish claims of trial error from claims of structural error. Rather, the doctrine serves to distinguish claims that were raised before the state courts from claims that the state courts had no opportunity to consider....

...

Even if the cumulative effect of Ward’s claims arising from the ex parte conversations, the alleged perjury, and the alleged Brady violation rose to the level of a structural violation—an issue this Court need not reach—the structural nature of the claim would not excuse Ward’s failure to present the claims to the State courts. ... As Ward has not argued cause and prejudice or that a fundamental miscarriage of justice would occur if his claims were not addressed, the district court was correct to find the claims barred by the procedural default doctrine.

Procedure -- Default/Forfeiture -- Ineffective Assistance of Counsel Claim: Failure to Raise in No-Merit Report
Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003)
Issue/Holding: Litigant's failure to raise ineffective assistance of counsel argument, in response to no-merit report, did not amount to waiver of the claim:
The State takes the position, as did the Court of Appeals of Wisconsin, that Mr. Page’s failure to address the issue of ineffective assistance of trial counsel in his response to the Anders no-merit brief constitutes a waiver and ought not be excused. See Appellee’s Br. at 6-8. We cannot accept this argument. First, we do not believe that an even-handed application of Wisconsin law permits such a result. It is clear that Wisconsin law would not have permitted Mr. Page to make such an argument before the Court of Appeals of Wisconsin without its having been raised initially before the trial court.

...

There is an even more fundamental reason why a criminal defendant may not be said to have waived a claim in the manner suggested b