Postconviction Hearing (§ 974.06) – IAC Claim – Pleading Requirements

By Wisconsin State Public Defender

Jul 20, 2011

State v. David J. Balliette, 2011 WI 79, reversing unpublished decision; for Balliette: Steven D. Grunder, SPD, Madison Appellate; case activity

Balliette’s pro se § 974.06 motion, asserting ineffective assistance of postconviction counsel for failing to raise ineffective assistance of trial counsel on direct appeal, was insufficiently pleaded to require an evidentiary hearing.

Unless you’re an appellate specialist or a masochist – but we repeat ourselves – you can profitably stop reading here.

Undeterred, then? Don’t say you weren’t warned. First, the background facts, at least roughly. Balliette was convicted of homicide by intoxicated use of a motor vehicle., his defense being that the crash would have occurred anyway, even if he had been sober. His Rule 809.30 motion argued ineffective assistance, with respect to a jury instruction and a sentencing issue; it was denied after a Machner hearing and the court of appeals affirmed on direct appeal. Balliette’s § 974.06 motion, the subject of this appeal, again argued ineffective assistance of trial counsel, but on different bases, including failure to utilize an accident reconstruction expert, whose own conclusion questioned the State’s reconstruction experts. The motion also asserted that postconviction counsel was ineffective for not making these grounds part of the direct-appeal IAC claim. The circuit court denied the motion without a hearing, the court of appeals reversed, and the supreme court now reinstates the trial court ruling.

Some general principles may be extracted from the opinion. Well-settled though they are, they’re worth summarizing, not least because they’re so recurrent.

Counsel’s adequacy (postconviction as well as trial) is strongly presumed, with tactical decision-making “virtually unchallengeable,” ¶¶25-28.
An IAC claim against appellate counsel must be raised by habeas petition in the court that heard the appeal; but when the claim relates to postconviction counsel’s failure to claim some deficiency in trial counsel’s representation, it must be brought in the circuit court, either by § 974.06 motion or habeas petition, ¶32.
A § 974.06 motion generally comes within the serial-litigation rule (“sufficient reason” must be adduced as to why the issue now raised wasn’t raised previously), except that if the defendant didn’t pursue any direct-appeal remedy, “he is not subject to the ‘sufficient reason’ requirement of § 974.06(4),” ¶36. Ineffective assistance of postconviction counsel may constitute a “sufficient reason” for overcoming the serial-litigation bar, ¶37.
A motion raising an IAC claim “require(s) some particularity of how the defendant intends to show that postconviction counsel’s performance was objectively deficient and how that performance resulted in prejudice to the defense,” ¶40. That is, the motion may be denied without a hearing, ¶¶45-50. (By contrast, a pretrial motion raising an issue that turns on fact-finding is subject to less demanding standards, and generally supports an evidentiary hearing as a matter of due process, ¶¶52-53.)
Whether to grant a hearing on a § 974.06 motion depends on whether the test of State v. Allen, 2004 WI 106, ¶59, 274 Wis. 2d 568, 682 N.W.2d 433 is satisfied (“the five ‘w’s’ and one ‘h’ test, ‘that is, who, what, where, when, why, and how”).

Balliette, then, was required to plead a “sufficient reason” why his present claim wasn’t previously raised, which of course means he was required to plead that postconviction counsel was ineffective. As suggested above, his motion specifically asserted postconviction counsel’s failure to challenge certain aspects of trial counsel’s performance; the motion also included a detailed report from a reconstruction expert, disputing a conclusion reached by the State’s experts, ¶¶13-14. Not good enough, the court says, ¶63 (Balliette was required to do more than assert postconviction counsel’s failure to challenge certain aspects of trial counsel’s conduct, namely, that postconviction counsel “performed deficiently” and thus “prejudiced” the defense).

¶65 Balliette’s October 31, 2008, motion identifies “several acts and omissions” of trial counsel that he believes constitute ineffective assistance and should have been raised by postconviction counsel. But this is, at best, only part of what is required in a § 974.06 motion. Balliette was required to assert why it was deficient performance for postconviction counsel not to raise these issues. As the Court noted in Smith v. Murray, 477 U.S. 527, 534 (1986), counsel’s “deliberate, tactical decision not to pursue a particular claim is the very antithesis of the kind of circumstance that would warrant excusing a defendant’s failure to adhere to a State’s legitimate rules for the fair and orderly disposition of its criminal cases.”

…

¶67 Thus, Balliette’s § 974.06 motion … needed to do more than point to issues that postconviction counsel did not raise. He needed to show that failing to raise those issues fell below an objective standard of reasonableness. This effort would have required him to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound . . . strategy.'” Strickland, 466 U.S. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). His legal attack would have required facts, presented in a “five ‘w’s’ and one ‘h'” format.

…

¶69 Balliette’s motion does not assert that the issues that Attorney Hunt failed to raise are obvious and very strong, and that the failure to raise them cannot be explained or justified. Neither does his motion allege facts that would support his ultimate objective. The motion does not set forth what Balliette intended to prove at an evidentiary hearing, if one were granted.

The dissent aptly sums things up: “The uncertain pleading requirements set by the majority are bound to baffle the bench and bar, not to mention pro se defendants, who are the typical drafters of postconviction motions,” ¶92. The majority opinion is confusing. However, the key to unlocking its meaning might be in its concluding paragraphs, which deny that any of the asserted deficiencies might have been prejudicial, ¶¶72-78. Consider, in light of this determination of no prejudice, the idea that the collateral-attack defendant must show that the overlooked issue is “clearly stronger” than any issues raised on direct appeal, Smith v. Robbins, 528 U.S. 259, 288 (2000). Also, Brown v. Finnan, 598 F.3d 416, 425 (7th Cir. 2010) (“An appellate counsel’s performance is deficient if she fails to argue an issue that is both obvious and clearly stronger than the issues raised.”) The majority certainly relies on this concept (explicitly so, in ¶69), even if it doesn’t cite these authorities. Maybe the decision is explicable this way: deficient performance and prejudice are organically linked, in the sense that the less likely an omission resulted in prejudice the less likely it was “obvious and very strong.” If the pleading can’t make out a strong case for potential prejudice, then of necessity it can’t demonstrate that counsel eschewed a sufficiently compelling line of attack. This attempt at synthesis isn’t entirely satisfactory, to be sure but On Point is nothing if not game. Now, you try your hand: the Comment box below is open and inviting.