By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 12, 2010 – A defendant is barred from raising issues in a subsequent post-conviction motion if the defendant did not previously raise those issues in response to his post-conviction attorney’s no-merit report, the Wisconsin Supreme Court recently held.

In State v. Allen, 2010 WI 89, the supreme court affirmed an appeals court decision that denied Aaron Allen’s Wis. Stat. section 974.06 motion for post-conviction relief.

Allen was convicted of possession of a firearm by a felon and armed robbery and sentenced to 37 years imprisonment in 1998. In 1999, Allen pursued post-conviction relief, and the state public defender office appointed attorney Craig Kuhary to represent him.

Pursuant to section (Rule) 809.32(1), Kuhary filed a no-merit report, concluding that an appeal on behalf of Allen would be without any arguable merit within the meaning of Anders v. California, 386 U.S. 738 (1967).  Allen did not file a response to the no-merit report.

The appeals court affirmed Allen’s conviction and relieved Kuhary from representation. Seven years later, in 2007, Allen filed a pro se motion for post-conviction relief under section 974.06.

Allen argued that Kuhary was ineffective because he failed to raise the ineffective assistance of counsel claim against his trial counsel in the no-merit report.

The circuit court denied Allen’s motion, concluding that issues raised in Allen’s motion were deemed waived because “he failed to raise them in a response to his appellate counsel’s no-merit report.” The appeals court affirmed. Allen petitioned the supreme court for review.

No sufficient reason

The supreme court – in an opinion written by Justice David Prosser – concluded that Allen did not demonstrate a sufficient reason why his claims were not raised in the no-merit process, and failure to raise the claims then bars them now.

Under section (Rule) 809.32(1), which closely mirrors the no-merit procedure set out in Anders v. California, the court explained, a defendant may file a response to a no-merit report filed by post-conviction counsel. Allen did not do so in this case.

Under section 974.06(2), issues not raised “in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion” unless there is a sufficient reason that issue was not previously asserted or was inadequately raised in the “original, supplemental or amended motion.” A no-merit appeal “clearly qualifies as a previous motion under section 974.06(4)” the court noted.

Under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), grounds for relief that are not raised in a prior post-conviction motion may not be the basis for a subsequent section 974.06 motion unless there is a sufficient reason those issues were not raised, and Escalona-Naranjo applies to the no-merit process.

Under the no-merit process, the court explained, a court must perform a “’full examination of all the proceedings to search for any legal points arguable on their merits.’” A defendant should raise any issues in a response, “because doing so will decrease the chance that the court of appeals will overlook an issue of arguable merit.”

As long as a court follows the no merit procedure required under Anders, a defendant is barred from raising issues in a subsequent section 974.06 motion, regardless of whether he raised them in a response or not, the court noted.

To satisfy the “sufficient reason standard,” the court explained, “the defendant must do something to undermine our confidence in the court’s decision, perhaps by identifying an issue of such obvious merit that it was an error by the court not to discuss it.”

Allen argued that Kuhary was ineffective, and that constituted a sufficient reason for failing to raise the issue that his trial counsel was ineffective in the no-merit report.

But the court concluded that Allen’s 974.06(4) motion did not allege facts that Kuhary was ineffective, and did not explain why Allen himself did not raise the issue in a no-merit response. Thus, the court held that Allen was barred under section 974.06(4) from raising the issue now.

Concurrence

In a concurring opinion joined by Justice Ann Walsh Bradley, Chief Justice Shirley Abrahamson noted that this case “illustrates the legal house of mirrors that postconviction procedure in Wisconsin has become.”

The chief justice voiced concern over the majority’s “sufficient reason standard,” asserting the argument, among others, that a court of appeals “errs when it overlooks issues of ‘arguable merit,’ not when it overlooks issues of ‘obvious merit.’”

“I am not persuaded that the procedure set forth in the majority opinion has provided judicial economy, simplicity of finality,” Chief Justice Abrahamson wrote.

Attorneys

Robert Henak of the Henak Law Office S.C., Milwaukee, represented Aaron Allen. Assistant Attorney General William Gansner represented the state.