Federal District court says, contra SCOW, that there’s no “clearly stronger” element to an appellate IAC claim

Walker v. Pollard, 18C0147, Eastern District of Wisconsin, 9/4/19

Montgomery Walker is a pro se habeas petitioner who alleges that his postconviction/appellate counsel should have raised a claim of juror bias. In an order granting Walker an evidentiary hearing, the U.S. District Court holds that our supreme court was wrong, in State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, to say an appellate lawyer can’t be ineffective for failing to raise a claim unless that claim is “clearly stronger” that claims the lawyer did raise. The decision explains that SCOW misread Smith v. Robbins, 528 U.S. 259 (2000), as imposing such a rule. The whole thing is worth a read, but here’s the nub, if you’re thinking of challenging our state’s rule:

In [Starks], the court held that, to prevail on a claim of ineffective assistance of appellate counsel involving counsel’s failure to raise arguments, the defendant, in addition to showing that appellate counsel performed deficiently and that he was prejudiced as a result, must “also establish why the unraised claims . . . were `clearly stronger’ than the claims that appellate counsel raised on appeal.” Id. at 305-06 (emphasis added).

Immediately we see the problem here: In Starks, the Wisconsin Supreme Court added a third element to the Strickland test for claims of ineffective assistance of counsel involving appellate counsel’s failure to raise an argument. But of course, Strickland clearly establishes that a claim of ineffective assistance of counsel has only two elements: deficient performance and prejudice. See Strickland, 466 U.S. at 687. Moreover, the Supreme Court of the United States has clearly established that Strickland‘s two-pronged standard governs all claims for ineffective assistance of appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000). Thus, the Wisconsin Supreme Court’s decision to add a third element to Strickland for claims involving appellate counsel’s failure to raise an issue was contrary to clearly established Supreme Court law.