2013 WI 69
SUPREME COURT OF WISCONSIN
CASE NO.: 2010AP425
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Tramell E. Starks,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 336 Wis. 2d 474,
801 N.W. 2d 348
(Ct. App. 2011 – Unpublished)
OPINION FILED: July 12, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 9, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Kevin E. Martens
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, J., ABRAHAMSON, C.J., CROOKS, J.,
dissent. (Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Tricia J. Bushnell, Caitlin Plummer, Lindsey E. Smith and law
student practitioners Michael Boshardy, R. Warren Beck, and
Joshua Jarrett, and Frank J. Remington Center, Madison, with
oral argument by Tricia J. Bushnell.
For the plaintiff-respondent, the cause was argued by Sarah
K. Larson, assistant attorney general, with whom on the brief
was J.B. Van Hollen, attorney general.
An amicus curiae brief was filed by Robert R. Henak and
Henak Law Office, Milwaukee, on behalf of the Wisconsin
Association of Criminal Defense Lawyers.
2
2013 WI 69
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2010AP425
(L.C. No. 2006CF450)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUL 12, 2013
Tramell E. Starks,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. This case began with the
murder of Lee Weddle in his apartment on a spring day in 2005.
A subsequent police investigation resulted in charges against
the petitioner in this case, Tramell E. Starks, for first-degree
intentional homicide as a party to a crime and possession of a
firearm by a felon. Following a jury trial, he was convicted of
the lesser-included offense of reckless homicide and the felon-in-possession of a firearm charge.1 On direct appeal, Starks's
1
The Honorable William W. Brash, III, presiding.
No. 2010AP425
convictions were affirmed. State v. Starks, No. 2008AP790-CR,
unpublished slip op. (Wis. Ct. App. Dec. 23, 2008) (Starks I).
¶2 Subsequently, Starks filed a motion pursuant to Wis.
Stat. § 974.062 (2011-12)3 with the circuit court,4 alleging that
the attorney who handled his appeal was ineffective for failing
to raise ineffective assistance of trial counsel claims. The
circuit court dismissed this motion for exceeding the local rule
on page length limit. Two days later, Starks filed a motion
with the circuit court to vacate his assessed DNA surcharge
pursuant to State v. Cherry,
2008 WI App 80,
312 Wis. 2d 203,
752 N.W.2d 393 (henceforth "Cherry motion"). This motion was
denied as untimely. Starks then refiled his original § 974.06
motion with the circuit court, this time within the page limit
requirement. The circuit court rejected Starks's motion on the
merits and denied his request for an evidentiary hearing,
finding that he had not set forth a viable claim for relief.
¶3 The court of appeals affirmed the circuit court,
although on different grounds. State v. Starks, No. 2010AP425,
unpublished slip op. (Wis. Ct. App. June 14, 2011) (Starks II).
It held that Starks's second Wis. Stat. § 974.06 motion was
2
Wisconsin Stat. § 974.06 sets forth a procedure for a
defendant to collaterally attack his conviction. A collateral
attack is "[a]n attack on a judgment in a proceeding other than
a direct appeal . . . ." Black's Law Dictionary 298 (9th ed.
2009).
3
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version.
4
The Honorable Kevin E. Martens, presiding.
2
No. 2010AP425
procedurally barred because Starks could have, but did not,
raise his ineffective assistance of counsel arguments in his
Cherry motion. Starks II, No. 2010AP425, ¶6.
¶4 At the outset we note that there is a procedural
problem in this case. Starks's Wis. Stat. § 974.06 motion,
which was filed with the circuit court, alleged ineffective
assistance of postconviction counsel. However, the attorney who
represented him after his conviction did not file any
postconviction motions and instead pursued a direct appeal. He
was thus not Starks's postconviction counsel but was rather his
appellate counsel. This is significant because claims of
ineffective assistance of appellate counsel must be filed in the
form of a petition for a writ of habeas corpus with the court of
appeals. State v. Knight,
168 Wis. 2d 509, 520,
484 N.W.2d 540
(1992). By bringing his claim in the circuit court, Starks
pursued his case in the wrong forum. However, because the
erroneous filing deprived the circuit court of competency rather
than jurisdiction, our review of his case is appropriate.
¶5 Three issues are presented in this case. The first is
whether a Cherry motion to vacate a DNA surcharge is considered
a "prior motion" under § 974.06(4), such that a defendant is
required to raise postconviction ineffective assistance of
counsel arguments in his Cherry motion. The second issue we
address is the appropriate pleading standard a court must
utilize when a defendant alleges in a petition for writ of
habeas corpus that his appellate counsel was ineffective for
failing to raise certain arguments. Finally, we must determine
3
No. 2010AP425
whether Starks received ineffective assistance of appellate
counsel.
¶6 With respect to the Cherry motion issue, we hold that
because sentence modification is a distinct procedure from Wis.
Stat. § 974.06 motions, a defendant is not required to shoehorn
ineffective assistance of postconviction counsel arguments into
a Cherry motion. As to the second issue, the proper pleading
standard, we hold that a defendant who argues in a habeas
petition that he received ineffective assistance of appellate
counsel because certain arguments were not raised must
demonstrate that the claims he believes should have been raised
on appeal were "clearly stronger" than the claims that were
raised. On the third and final question of whether Starks
received ineffective assistance of appellate counsel, we hold
that because the arguments Starks believes should have been
raised were not clearly stronger than the arguments that were
raised in his appeal, Starks's appellate attorney was not
ineffective. We therefore affirm the court of appeals.
I. FACTUAL BACKGROUND
¶7 On the afternoon of March 31, 2005, Milwaukee police
officers were dispatched to Lee Weddle's duplex apartment after
a man in the upper unit called 911 to report that he heard a
fight in the apartment beneath him followed by several gunshots.5
When police arrived, they found Weddle lying face down in a pool
of blood. He was pronounced dead shortly thereafter.
5
The facts leading up to Starks's trial are taken from the
criminal complaint and are not contested.
4
No. 2010AP425
¶8 Five days after the shooting, police received an
anonymous tip that Starks was the killer, and that Antwon
Nellum, Wayne Rogers, and other unidentified people were present
during the shooting. The Milwaukee Police Department notified
its officers on April 15, 2005 that Starks was a suspect in
Weddle's murder. On April 20, Nellum was arrested for a
domestic violence matter and a parole violation. When
questioned about Weddle's murder, Nellum answered that he could
not disclose what had occurred because police could not
guarantee his safety and that of his family.
¶9 Starks voluntarily spoke with police on April 21, but
denied knowing Weddle, Nellum, or Rogers, or anything about the
murder. Nellum was then interviewed a second time on April 22.
This time he told the detectives that he had not been candid
during his first interview about what occurred on March 31
because he was afraid of Starks. During the second interview
Nellum said that he witnessed a fight between Starks and Weddle
and that he left because he thought that Starks "was going to do
something real crazy." Nellum said that as he was running out
of the apartment, he heard four or five gunshots.
¶10 Nellum was released from custody on July 7, 2005, and
found murdered in his car three weeks later, his vehicle riddled
with two dozen bullet holes.
¶11 Rogers was arrested on a drug offense and brought into
custody in August 2005. He was asked about Weddle's murder and
opined, "ya'll already know who killed him," although he claimed
he was asleep in the apartment when the shots were fired and
5
No. 2010AP425
thus did not see the shooting. During a later interview,
however, his story changed. At that second interview, Rogers
noted that Weddle was his best friend and that he wanted to
"come clean" now that he was no longer scared of what Starks
would do to him if he told the truth. According to Rogers,
Starks was at the apartment complaining to everyone present
about comments Weddle had made regarding Starks's girlfriend.
When Weddle arrived, a confrontation between Starks and Weddle
ensued. Starks threw the first punch, but Weddle fought back.
After Weddle pulled out a clump of Starks's hair, Starks accused
him of "fight[ing] dirty." Starks was then handed a gun by
Mario Mills, turned around, and shot Weddle two times. Before
Rogers ran out of the apartment, he heard Weddle say, "man, you
killed me." Rogers then heard three or four more shots as he
was leaving the apartment. Later that day, Rogers called Mills
to ask if Weddle was all right. Starks, who was with Mills, got
on the phone and said, "F--- [Weddle]."
¶12 Starks and Mills were arrested and both charged with
first-degree intentional homicide as a party to a crime and
possession of a firearm by a felon. Pursuant to a plea
agreement, Mills admitted to the crime of furnishing a firearm
to a felon. Starks, however, pled not guilty as to both counts
and the case was tried to a jury in December 2006. The State
relied on the eyewitness accounts of three men who were present
when the shooting occurred: Rogers, Devin Ward, and Carvius
Williams. Rogers gave the same account of the murder at trial
as he did to police investigators during his second interview.
6
No. 2010AP425
Ward and Williams provided testimony very similar to Rogers',
although Ward related that he left the apartment during the
fight and was walking towards his car when he heard shots fired.
¶13 The State also called Starks's cousin, Trenton Gray,
to the witness stand. Gray testified that on the day of
Weddle's murder Starks called him "in a state of distress." As
Gray recounted, "he was asking me if he can go to a place that I
had been previously in my life up in North Dakota, would he be
able to take refuge for some things that he believe[d] he had
done." When Gray asked Starks what was going on, he said, "I
don't know, cuz, I think I just murdered somebody." Gray also
testified that in a later conversation between the two about the
murder, Starks told him about the fight and that Mills provided
the gun to Starks. Gray further testified that Starks wanted to
kill Williams because Starks believed that Williams "was telling
on him about the murder" at a funeral.
¶14 The jury convicted Starks of the lesser-included
offense of first-degree reckless homicide and also the felon-in-possession of a firearm charge. He was sentenced to a total of
36 years in prison followed by 19 years of extended supervision.
II. PROCEDURAL HISTORY
A. Starks's Direct Appeal
¶15 Following his convictions, the Public Defender's
Office appointed a new attorney, Robert Kagen, to represent
Starks in his postconviction matters. Kagen did not file any
postconviction motions with the circuit court and instead
pursued a direct appeal at the court of appeals, in which he
7
No. 2010AP425
raised four arguments: (1) the circuit court should have granted
Starks's request for the lesser-included offense instruction on
second-degree reckless homicide; (2) a mistrial should have been
declared when a witness sequestration order was violated; (3)
the circuit court erred in not dismissing the case based on the
prosecution's failure to turn over information relating to the
identity of "Junebug;" and (4) the evidence was inconsistent and
therefore insufficient to support the verdict. In an
unpublished opinion, the court of appeals rejected each of
Starks's arguments and affirmed his convictions. Starks I, No.
2008AP790-CR.
¶16 On the issue of the jury instruction, Starks argued
that he was entitled to an instruction on second-degree reckless
homicide. As Starks pointed out, the only difference between
first- and second-degree reckless homicide is that the former
requires proof of the additional element of "utter disregard for
human life." Compare Wis. Stat. § 940.02 with
Wis. Stat.
§ 940.06. Starks contended that because he shot Weddle below
the waist and expressed distress when he learned Weddle died, he
showed at least some regard for Weddle's life. Starks I, No.
2008AP790-CR, ¶13. As Starks fled from the apartment without
trying to help Weddle or calling 911, however, the court of
appeals held that Starks showed "a complete lack of concern for
Weddle's life," and thus was not entitled to a jury instruction
on second-degree reckless homicide. Id., ¶15.
¶17 The court of appeals also rejected Starks's claim that
a mistrial should have been granted when Gray and Rogers were
8
No. 2010AP425
accidently transported to the courthouse in the same sheriff's
van, in violation of a sequestration order. When Starks made
this motion during his trial, the circuit court found that Gray
and Rogers had not discussed the substance of their testimony
and thus denied his request for a mistrial. The court of
appeals affirmed the circuit court's findings, and held that the
circuit court did not erroneously exercise its discretion in
denying Starks's motion for a mistrial. Id., ¶22.
¶18 The third issue Starks raised was that the circuit
court should have declared a mistrial because the prosecution
failed to disclose "Junebug's" identity. Junebug was the owner
of the cell phone that Gray used when he spoke to Starks on the
day of the murder. In August 2006, nearly three months before
trial, Starks asked the State to turn over the identity of
Junebug so that the defense could examine whether any calls were
made between Junebug's phone and Starks. The State turned over
Gray's cell phone directory, which included Junebug's number.
The prosecution submitted, though, that it did not know
Junebug's identity. At trial, Gray unexpectedly revealed
"Junebug" to be "Ray Gill." Starks moved for a mistrial on the
grounds that, because federal agents discovered Junebug's
identity in September 2006 (more than two months before Starks's
trial), that knowledge was imputed to the State such that it had
a duty to turn over the information. The circuit court found
that, in addition to providing Junebug's phone number, the State
also gave the defense documents which showed that the same phone
number was registered to Gill, but apparently neither the
9
No. 2010AP425
defense nor the prosecution pieced the information together to
deduce that Junebug was Gill. As Starks possessed the same
information as the State, the circuit court denied the motion
for a mistrial. The court of appeals accepted this factual
finding and concluded that the circuit court was within its
discretion to deny Starks's motion. Id., ¶29.
¶19 Starks's final argument on direct appeal was that the
evidence was insufficient to support his convictions because of
inconsistencies in the testimony of various witnesses. For
example, Starks alleged that some of the witnesses who were in
the apartment at the time of the shooting gave conflicting
accounts as to who left first, whether people left before or
after the shooting, and whether Weddle was shot in the living
room or the kitchen. Id., ¶30. In reviewing the record, the
court of appeals concluded that "the jury could reasonably find
Starks guilty based on the evidence presented." Id. The court
noted that eyewitness testimony often produces some
inconsistencies and that in any event, "[t]he State's case was
strong." Id., ¶31.
¶20 After the court of appeals affirmed Starks's judgment
of conviction, this court denied his petition for review.
B. Starks's Wis. Stat. § 974.06 and Cherry Motions
¶21 On December 17, 2009, Starks, acting pro se, filed a
Wis. Stat. § 974.06 motion with the circuit court. Starks
alleged that Kagen was ineffective for failing to raise numerous
claims of ineffective assistance of trial counsel and that,
consequently, he was entitled to an evidentiary hearing on his
10
No. 2010AP425
claims. The circuit court dismissed the motion on January 4,
2010, because it exceeded the Milwaukee County Circuit Court
local rule on page length limit. Two days later, on January 6,
2010, Starks filed a Cherry motion to vacate his DNA surcharge.6
This motion was denied on the grounds that a motion to modify a
sentence must be brought within 90 days after a sentence is
imposed.7 See Wis. Stat. § 973.19(1)(a). Following the
dismissal of his Cherry motion, Starks refiled his § 974.06
motion on January 19, 2010, this time within the local page
limit stricture.
¶22 The circuit court denied Starks's Wis. Stat. § 974.06
motion on the merits as "not set[ting] forth a viable claim for
relief with regards to trial counsel's performance." In
reaching that result, the court addressed each of Starks's
6
All defendants convicted of a felony are required to
provide a DNA sample to the State Crime Laboratory. State v.
Ziller, 2011 WI App 164, ¶9,
338 Wis. 2d 151,
807 N.W.2d 241,
review denied,
2012 WI 45,
340 Wis. 2d 544,
811 N.W.2d 820.
Unless the felony is sexual assault, the circuit court has
discretion in deciding whether to impose a $250 DNA surcharge on
the defendant.
Id. In State v. Cherry,
2008 WI App 80, ¶10,
312 Wis. 2d 203,
752 N.W.2d 393, the court of appeals held that
a circuit court "must do something more than stat[e] it is
imposing the DNA surcharge simply because it can." At the very
least, a circuit court must demonstrate that it went through a
rational decision-making process. Id., ¶¶10-11. A motion
challenging the circuit court's discretion in imposing a DNA
surcharge is thus known as a "Cherry motion."
7
It appears from the record that Starks was challenging a
DNA surcharge that was imposed in 2001 as the result of a
previous conviction. The specifics of that conviction are not
germane to the present dispute.
11
No. 2010AP425
claims individually.8 First, the circuit court dealt with
Starks's contention that Kagen should have raised trial
counsel's failure to investigate Junebug's identity and phone
records. In his motion, Starks averred that if trial counsel
had done so, he would have found that Starks and Gray did not——
contrary to Gray's testimony——speak on Junebug's phone on March
31, 2005. The circuit court found that Starks's assertions were
wholly conclusory, as he did not submit any phone records to
substantiate his claim. Starks next averred that his trial
counsel should have interviewed Dion Anderson, whom Starks says
was in the same sheriff's van as Gray and Rogers and allegedly
heard them conspiring to influence each other's testimony. The
court found that this claim too was factually unsupported and
conclusory.
¶23 Starks's third assertion was that his trial counsel
should have called Stanley Daniels (his father) and Mary
McCullum (his grandmother) as witnesses. Both of them submitted
affidavits attached to the Wis. Stat. § 974.06 motion saying
that they were at the funeral where Starks allegedly told Gray
that he wanted to kill Williams because Starks believed that
Williams "was telling on him about the murder." In their
affidavits, Daniels and McCullum swore that they did not see
Gray and Starks engaged in conversation on that day. The
8
In his Wis. Stat. § 974.06 motion, Starks alleged six
instances of ineffective assistance of trial counsel that Kagen
should have raised. Before this court, Starks raises only four
of those original claims. We therefore will not review the two
claims that were dropped.
12
No. 2010AP425
circuit held that even if they testified to that effect, there
was not a "reasonable probability" of a different outcome at
trial, and Starks therefore could not satisfy the prejudice
prong of his ineffectiveness claim.
¶24 Finally, Starks argued that his trial counsel should
have called Mills as a witness, as he swore in another affidavit
attached to the motion that he did not see Starks shoot Weddle
and that Rogers was the only one at the apartment with a gun.
The circuit court found this claim "speculative," and noted that
Mills (originally Starks's co-defendant) made this statement
only after he pled no contest pursuant to a plea agreement and
was sentenced for furnishing a firearm to a felon, thus
undermining his credibility.
¶25 After losing at the circuit court Starks appealed. In
an unpublished per curiam opinion, the court of appeals
affirmed, albeit on procedural rather than substantive grounds.
Starks II, No. 2010AP425. The court declined to reach the
merits of Starks's appeal, holding instead that his Wis. Stat.
§ 974.06 motion was procedurally barred by this court's decision
in State v. Escalona-Naranjo,
185 Wis. 2d 168,
517 N.W.2d 157
(1994), because Starks could have raised his ineffective
assistance of counsel claims in his Cherry motion and failed to
do so. Starks II, No. 2010AP425, ¶6. While ineffective
assistance of counsel might explain why the issues in Starks's
§ 974.06 motion were not raised in his direct appeal, there was
no explanation as to why Starks did not raise these issues in
13
No. 2010AP425
his Cherry motion, and so, the court of appeals reasoned,
Starks's § 974.06 motion was properly denied. Id.
¶26 We granted Starks's petition for review.
III. STANDARD OF REVIEW
¶27 The first question we must address is whether we have
jurisdiction. We apply a de novo standard to such
jurisdictional questions. See, e.g., Town of Delafield v.
Winkelman, 2004 WI 17, ¶14,
269 Wis. 2d 109,
675 N.W.2d 470.
¶28 The next question in this case is: does a defendant
who files a Cherry motion forfeit his right to later file a Wis.
Stat. § 974.06 postconviction motion? Assuming that Starks's
§ 974.06 motion was not barred by his earlier Cherry motion, we
then must determine the proper pleading standard for a court to
apply when a defendant alleges that his postconviction counsel
was ineffective for not raising certain arguments. These issues
require us to examine § 974.06 along with Escalona-Naranjo and
its offspring. The proper interpretation of a statute and case
law raises questions of law that we review de novo. Welin v.
Am. Family Mut. Ins. Co.,
2006 WI 81, ¶16,
292 Wis. 2d 73,
717
N.W.2d 690.
¶29 Lastly, we address the merits of Starks's Sixth
Amendment ineffective assistance of appellate counsel claim,
i.e., his habeas claim. This also presents a mixed question of
fact and law. Knight, 168 Wis. 2d at 514 n.2. The circuit
court's factual findings are given deference, but whether there
was ineffective assistance of counsel is a question of law that
we answer independently.
Id.
14
No. 2010AP425
IV. DISCUSSION
¶30 We first hold that Starks improperly cast his claim of
ineffective assistance of appellate counsel as a claim of
ineffective assistance of postconviction counsel. Because a
claim of ineffective assistance of appellate counsel must be
filed as a petition for a writ of habeas corpus with the court
of appeals, Starks's decision to file a Wis. Stat. § 974.06
motion with the circuit court was procedurally incorrect.
However, because the mistake deprived the circuit court of
competency rather than jurisdiction, our review of Starks's
claim is appropriate.
¶31 This is a procedurally complex case that implicates
two dense and interrelated areas of law. To clarify the
following sections at the outset, for purposes of Section B we
treat Starks's action as a Wis. Stat. § 974.06 motion alleging
ineffective assistance of postconviction counsel, because that
is what he styled it as and because that is the only way we can
clarify the important issue presented regarding the relationship
between Cherry motions and § 974.06 motions. However, for the
discussion of ineffective assistance of appellate counsel in
Sections C and D, we treat Starks's action as a petition for a
writ of habeas corpus filed with the court of appeals in the
first instance and alleging ineffective assistance of appellate
counsel. We do so because given the arguments in his claim that
is what he should have filed, as he was challenging appellate
and not postconviction counsel. We explain this in greater
detail below. Additionally, treating it as a habeas claim for
15
No. 2010AP425
ineffective assistance of appellate counsel is the only way we
can clarify the important issue presented regarding the proper
standard to apply to such claims, and that allows us to dispose
of his action without wasting unnecessary judicial resources by
delaying the ultimate resolution of his claim. Thus, our
holding in Section B applies to § 974.06 motions, while our
articulation of the proper pleading standard and our application
of that standard in Sections C and D apply to habeas claims
alleging ineffective assistance of appellate counsel. We
understand that our approach is an unusual one, but we note that
it is an unusual case with an unusual procedural posture, and we
take the only approach that allows us to clarify the difficult
legal questions presented while disposing of the matter before
us.
¶32 We hold as follows: (1) filing a Cherry motion does
not procedurally bar a defendant from filing a future Wis. Stat.
§ 974.06 motion; (2) the proper pleading standard required for a
defendant averring in a habeas petition that his appellate
counsel was ineffective for not raising certain arguments on
appeal is that the unraised claims were "clearly stronger" than
the claims that were raised; and (3) the claims of ineffective
assistance of trial counsel that Starks believes should have
been raised were not clearly stronger than the claims that were
raised by his appellate attorney and he thus fails to meet the
standard and qualify for habeas relief. Accordingly, we affirm
the court of appeals.
A. The Court Has Jurisdiction and Its Review is Appropriate
16
No. 2010AP425
¶33 Although no party questions our jurisdiction, we may——
indeed, must——ensure that we have the power to speak on a
dispute before doing so. State v. Omernik, 54 Wis. 2d 220, 222,
194 N.W.2d 617 (1972) ("[J]urisdiction is always a proper
question to consider, even if we raise it sua sponte.")
(footnote omitted).
¶34 In their briefs before this court, Starks and the
State refer to Starks's second appointed attorney, Robert Kagen,
as his "postconviction counsel." This is not an accurate
description, though, of the tasks Kagen performed. Kagen did
not file any postconviction motions with the circuit court and
instead pursued a direct appeal with the court of appeals. He
was thus Starks's "appellate" attorney.
¶35 The distinction is not merely semantical. A claim for
ineffective assistance of postconviction counsel must be filed
with the circuit court, either as a Wis. Stat. § 974.06 motion
or as a petition for a writ of habeas corpus. State ex rel.
Rothering v. McCaughtry,
205 Wis. 2d 675, 681,
556 N.W.2d 136
(Ct. App. 1996) (per curiam). A defendant arguing ineffective
assistance of appellate counsel, conversely, may not seek relief
under § 974.06 and must instead petition the court of appeals
for a writ of habeas corpus. Knight,
168 Wis. 2d at 520. As
Starks filed his claim with the circuit court, it should have
been dismissed and not allowed to proceed to an appeal.
¶36 However, we will address the merits of the issues
presented in this case for several reasons. First, the
defendant's erroneous decision to file in circuit court rather
17
No. 2010AP425
than the court of appeals deprived the former of competency to
proceed, not jurisdiction. To briefly summarize, jurisdiction
comes in two varieties: subject matter and personal. Subject
matter jurisdiction refers to the power of a court to decide
certain types of cases, while personal jurisdiction concerns a
court's power to enter a judgment against a specific individual.
State v. Smith, 2005 WI 104, ¶18,
283 Wis. 2d 57,
699 N.W.2d
508. Because Article VII, Section 8 of the Wisconsin
Constitution states that, "[e]xcept as otherwise provided by
law, the circuit court shall have original jurisdiction in all
matters civil and criminal within this state," we have declared
that "no circuit court is without subject matter jurisdiction to
entertain actions of any nature whatsoever." Vill. of
Trempealeau v. Mikrut,
2004 WI 79, ¶8,
273 Wis. 2d 76,
681
N.W.2d 190 (internal quotation marks and citation omitted).
Competency, meanwhile, speaks to "the power of a court to
exercise its subject matter jurisdiction in a particular case,"
Smith,
283 Wis. 2d 57, ¶18 (citation and internal quotation
marks omitted), a power which we have described as "lesser" than
that of jurisdiction itself because jurisdiction flows from the
Wisconsin Constitution whereas competency is set by statute.
Green Cnty. Dep't of Hum. Servs. v. H.N.,
162 Wis. 2d 635, 655-
56,
469 N.W.2d 845 (1991). Ergo, "the failure to comply with
any statutory mandate" goes to competence, not jurisdiction.
Id. at 656.
¶37 In this case, Starks miscast his claim of ineffective
assistance of appellate counsel as one of ineffective assistance
18
No. 2010AP425
of postconviction counsel and thus erroneously filed a Wis.
Stat. § 974.06 motion with the circuit court. But as we held in
Knight, § 974.06 does not provide a mechanism for ineffective
assistance of appellate counsel claims.
168 Wis. 2d at 520.
Rather, those claims must be raised initially with the court of
appeals via a petition for a writ of habeas corpus.
Id.
Because Starks did not follow the proper statutory procedure,
his error is better classified as depriving the circuit court of
competency rather than jurisdiction. Furthermore, Knight's
division of judicial labor was based on a pragmatic assessment
of the "institutional capabilities of trial and appellate
courts," an assessment that goes to competence rather than
jurisdiction.
Id. at 517, 520.
¶38 Unlike jurisdictional defects, competency issues must
be raised at the circuit court or they are deemed forfeited.
Mikrut, 273 Wis. 2d 76, ¶30. Here, there is no evidence in the
record that the State challenged the circuit court's competency
when Starks filed his
Wis. Stat. § 974.06 motions.
Additionally, the question of whether Starks followed the proper
procedure has not been briefed before this court. See State v.
Johnson,
153 Wis. 2d 121, 124,
449 N.W.2d 845 (1990) ("This
court will not consider the issues respondent wishes to have
considered unless they are asserted in the brief and fully
discussed in that brief to this court."). In sum, it would be
improper for the court to dismiss the case solely because Starks
erred when he chose the wrong forum for his initial filing.
19
No. 2010AP425
¶39 We are also mindful of prudential concerns and the
interests of judicial economy. If we were to dismiss this case
for want of jurisdiction, presumably Starks would simply refile
his current claim with the court of appeals, deleting the word
"postconviction" and replacing it with "appellate." This case,
however, has already been before the court of appeals.
Additionally, this court is as institutionally well-suited to
assess the effectiveness of an appellate attorney as the court
of appeals is, the issues are fully briefed and argued, and
their resolution will assist attorneys, defendants, and courts
in a heavily-litigated area of law going forward. Cf. Hull v.
State Farm Mut. Auto Ins. Co., 222 Wis. 2d 627, 640 n.7,
586
N.W.2d 863 (1998) (noting that where one issue may be
dispositive the court may still "consider additional issues
which have been fully briefed and are likely to recur" if
resolution of those issues will improve judicial economy and
provide guidance to lower courts and litigants) (citations
omitted); People v. Feliciano,
950 N.E.2d 91, 95 (N.Y. 2011)
(observing that "appellate courts are uniquely suited to
evaluate what [constitutes] meaningful [representation] in their
own arena.") (internal quotation marks, brackets, and citation
omitted).
¶40 Having settled the jurisdictional question, we turn to
the disputed issues.
B. A Cherry Motion Does Not Count as a Prior Motion Under
Wis. Stat. § 974.06(4) and
Escalona-Naranjo
1. Background
20
No. 2010AP425
¶41 The Wis. Stat. § 974.06 postconviction procedure was
enacted in 1969 and was "designed to replace habeas corpus as
the primary method in which a defendant can attack his
conviction after the time for appeal has expired." Howard B.
Eisenberg, Post-Conviction Remedies in the 1970's,
56 Marq. L.
Rev. 69, 79 (1972) (footnote omitted). A defendant may file a
§ 974.06 motion only after he has "exhausted his direct
remedies[,] which consist of a motion for a new trial and [an]
appeal." Peterson v. State,
54 Wis. 2d 370, 381,
195 N.W.2d 837
(1972). Once an imprisoned defendant has pursued all his direct
remedies, though, § 974.06(1) allows him to move to vacate, set
aside, or correct his sentence if he contends that: (1) his
sentence violates the U.S. or Wisconsin Constitution; (2) the
court imposing the sentence lacked jurisdiction; or (3) his
sentence exceeded the maximum time set by law or is otherwise
subject to collateral attack. State v. Allen,
2010 WI 89, ¶22,
328 Wis. 2d 1,
786 N.W.2d 124. A § 974.06 motion "is a part of
the original criminal action, is not a separate proceeding and
may be made at any time." § 974.06(2). Section 974.06 is
therefore meant to supplement a criminal defendant's standard
appellate and postconviction remedies.
¶42 A defendant's ability to seek relief under Wis. Stat.
§ 974.06 is not unlimited, though. Section 974.06(4) provides
that:
All grounds for relief available to a person under
this section must be raised in his or her original,
supplemental or amended motion. Any ground finally
adjudicated or not so raised, or knowingly,
21
No. 2010AP425
voluntarily and intelligently waived 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
the court finds a ground for relief asserted which for
sufficient reason was not asserted or was inadequately
raised in the original, supplemental or amended
motion.
¶43 The language in this subsection was discussed and
analyzed in the seminal Escalona-Naranjo case. There, the
defendant was convicted of multiple drug charges. Escalona-
Naranjo, 185 Wis. 2d at 173-74. After he was sentenced,
Escalona-Naranjo sought postconviction relief in the form of a
new trial, a competency redetermination, and resentencing.
Id.
at 174. The circuit court denied his motion and the court of
appeals affirmed.
Id. at 174-75. Escalona-Naranjo then filed a
Wis. Stat. § 974.06 motion asserting ineffective assistance of
trial counsel. Id. at 175. The circuit court summarily
dismissed the motion, concluding that Escalona-Naranjo was
merely regurgitating issues that had previously been raised in
his postconviction motion and appeal. Id. The court of appeals
certified the case to this court, stating that even though
Escalona-Naranjo may have forfeited certain evidentiary issues
by not objecting at trial, his § 974.06 motion may have raised
new issues not decided on direct appeal.9 Id.
9
The court of appeals and this court used the term
"waiver," but "forfeiture" is more accurate because "a mere
failure to object constitutes a forfeiture of the right on
appellate review." State v. Ndina, 2009 WI 21, ¶30,
315 Wis. 2d
653,
761 N.W.2d 612.
22
No. 2010AP425
¶44 Escalona-Naranjo argued before this court that his
failure to raise ineffective assistance of trial counsel in his
motion for a new trial or on direct appeal did not preclude him
from raising it in a subsequent Wis. Stat. § 974.06 motion
because his claim was based on a constitutional right. Id. at
180. In our decision, we began by overruling our own precedent
in Bergenthal v. State,
72 Wis. 2d 740, 748,
242 N.W.2d 199
(1976), which held that a court must always consider
constitutional claims in a § 974.06 motion, even those that were
forfeited on direct appeal. Escalona-Naranjo,
185 Wis. 2d at
181. We clarified that a defendant may not raise an issue in
his § 974.06 motion that was finally adjudicated, waived, or
forfeited, unless he can provide a "sufficient reason" for why
the issue was not raised in the "original, supplemental or
amended motion." Id. at 181-82 (quoting language from
§ 974.06(4)) (footnote omitted).
¶45 As we said in Escalona-Naranjo, "[w]e need finality in
our litigation." 185 Wis. 2d at 185. A defendant may not raise
some constitutional issues on direct appeal and strategically
wait a few years to raise additional ones.
Id. Rather, all
constitutional issues should be part of the original proceeding,
barring a "sufficient reason" for not raising them.
Id. at 185-
86.
2. A Cherry Motion is a Distinct Procedure From a Wis.
Stat. § 974.06 Motion
¶46 The first issue presented in this case is whether
Starks's January 6, 2010 motion to vacate his DNA surcharge,
23
No. 2010AP425
i.e., his Cherry motion, counted as a prior motion under Wis.
Stat. § 974.06(4) and Escalona-Naranjo such that his refiled
§ 974.06 motion of January 19 was procedurally barred and
required dismissal. While the court of appeals concluded that
Starks's Cherry motion prohibited him from refiling his § 974.06
motion, our analysis of the interrelationship between the
criminal appellate and postconviction statutes, as well as
applicable case law, reveals that sentence modification and
postconviction relief under
Wis. Stat. § 974.06 are separate
proceedings such that filing one does not result in a waiver of
the other. In this case, that means that Starks's Cherry motion
did not bar his subsequent § 974.06 motion.
¶47 We begin first by noting a concession on the part of
the State. The court of appeals in this case held that Starks's
Cherry motion barred his subsequent Wis. Stat. § 974.06 motion
because Starks could have raised ineffective assistance of
counsel in his Cherry motion. Starks II, No. 2010AP425, ¶6.
The State concedes that the court of appeals relied upon an
erroneous premise in reaching this conclusion, as
Wis. Stat.
§ 974.06 is confined to constitutional and jurisdictional
challenges, and Cherry motions, which cannot fairly be
categorized as either, are therefore never cognizable under the
statute. See State v. Nickel,
2010 WI App 161, ¶7,
330 Wis. 2d
750,
794 N.W.2d 765. Consequently, the State reasons, a tardy
Cherry motion cannot count as a prior § 974.06 motion within the
meaning of Escalona-Naranjo because a Cherry motion, even when
timely submitted, cannot be filed pursuant to that statute in
24
No. 2010AP425
the first place.10 However, the State asserts that a defendant
who files a timely Cherry motion would waive his right to
§ 974.06 relief. We find this distinction meaningless and hold
that a Cherry motion, standing alone, can never bar a defendant
from later filing a § 974.06 motion.
¶48 Returning to the underlying issue, we start our
analysis, as we must, by examining the text of the relevant
statutes. See State ex rel. Kalal v. Circuit Court for Dane
Cnty., 2004 WI 58, ¶45,
271 Wis. 2d 633,
681 N.W.2d 110
(statutory interpretation begins with the language of the
statute). Wisconsin Stat. § 973.19(1)(a) provides that "[a]
person sentenced to imprisonment . . . may, within 90 days after
the sentence or order is entered, move the court to modify the
sentence . . . ." As a Cherry motion is a challenge to a
defendant's DNA surcharge, it is a type of sentence modification
motion. See supra note 6. A defendant who files a sentence
modification motion under § 973.19(1)(a) waives his right to
file "an appeal or postconviction motion under [Wis. Stat. §
(Rule)] 809.30(2)."
Wis. Stat. § 973.19(5). Rule 809.30 is
located in Subchapter III of Chapter 809, which governs criminal
appellate procedure in the court of appeals. The definition
section of that statute defines "postconviction relief" as "an
appeal or a motion for postconviction relief in a criminal case,
10
Though we are not bound by a party's concession of law,
State v. St. Martin, 2011 WI 44, ¶14 n.6,
334 Wis. 2d 290,
800
N.W.2d 858, cert. denied,
565 U.S. __,
132 S. Ct. 1003 (2012),
we agree with the State that the court of appeals was mistaken
on this point.
25
No. 2010AP425
other than an appeal, motion, or petition under . . . [Wis.
Stat. §] 974.06 . . . ." Rule 809.30(1)(c) (emphasis added).
¶49 There are two noteworthy conclusions to be drawn from
this statutory scheme: (1) a defendant who moves to modify his
sentence pursuant to Wis. Stat. § 973.19(1)(a) renounces his
right to a direct appeal and postconviction relief, and (2) a
Wis. Stat. § 974.06 motion is expressly not one of those forms
of relief. If the legislature wanted, it certainly could have
forced a defendant to choose between filing a sentence
modification motion or a § 974.06 motion. But it did not. Cf.
Heritage Farms, Inc. v. Markel Ins. Co.,
2009 WI 27, ¶14 n.9,
316 Wis. 2d 47,
762 N.W.2d 652 (stating the judicial presumption
that the legislature means what it says and that every word
excluded from a statute was excluded for a reason). Our reading
of these statutes makes clear that a Cherry motion, or any
sentence modification motion, plainly does not waive a
defendant's right to bring a § 974.06 motion at a later date.
¶50 Further support for this interpretation is found in
the statutes governing time limits in criminal appellate and
postconviction matters. See Kalal, 271 Wis. 2d 633, ¶46
(permitting the court to look at the language of "surrounding or
closely-related statutes" to guide its interpretation). A
defendant has 20 days after his "sentencing or final
adjudication" to file notice in the circuit court that he is
seeking postconviction relief. Wis. Stat.
§ (Rule) 809.30(2)(b). As previously mentioned, a defendant
seeking to modify his sentence must file a motion within 90 days
26
No. 2010AP425
after the sentence or order is entered. Wis. Stat.
§ 973.19(1)(a). Wisconsin Stat. § 974.02(1) provides that "[a]
motion for postconviction relief other than under [Wis. Stat. §]
974.06 . . . shall be made in the time and manner provided in
[Wis. Stat. § (Rule)] 809.30." (Emphasis added). A § 974.06
motion, by contrast, "may be made at any time." § 974.06(2).
This statutory setup makes manifest that sentence modification
and § 974.06 motions are two separate forms of relief, such that
the filing of one does not preclude the filing of the other.
¶51 In addition to being textually sound, this
interpretation makes the most logical sense. Wisconsin Stat.
§ 974.06 was meant to supplant habeas corpus as the primary
method of attacking a conviction after the time for an appeal
has expired. Eisenberg, Post-Conviction Remedies in the 1970's,
56 Marq. L. Rev. at 79. According to the State's view, a
defendant who has just been sentenced has 90 days to either: (1)
make a Wis. Stat. § 974.06 argument, which is usually complex
given that it involves constitutional or jurisdictional
arguments, or (2) give up his right to seek a sentence
modification. Given that a § 974.06 motion "may be made at any
time," § 974.06(2), we find it implausible that a defendant
would have to relinquish his statutorily-protected right to
challenge his sentence in order to protect his future right to
challenge the constitutionality of his conviction in state
court. See Kalal,
271 Wis. 2d 633, ¶46 (observing that statutes
are interpreted to avoid absurd or unreasonable results). This
27
No. 2010AP425
incongruity reaffirms what the statutes make clear: a defendant
is not required to raise § 974.06 arguments in a Cherry motion.
¶52 Wisconsin case law also supports the view that Wis.
Stat. § 974.06 motions and Cherry motions are distinct
mechanisms that do not overlap. Section 974.06 motions are
limited to "matters of jurisdiction or of constitutional
dimensions." Peterson,
54 Wis. 2d at 381 (footnote omitted).
As such, "[s]ome grounds for relief are not available under
§ 974.06." State v. Lo,
2003 WI 107, ¶37,
264 Wis. 2d 1,
665
N.W.2d 756 (emphasis removed). Because of this restriction, a
defendant may not make a Cherry argument in his § 974.06 motion.
Nickel,
330 Wis. 2d 750, ¶7. Another important distinction is
that a Cherry motion must be made before a criminal conviction
becomes final, see id., ¶5, whereas, in contrast, a § 974.06
motion can be made only after "the time for appeal or
postconviction remedy provided in Wis. Stat. § [974.02] has
expired . . . ." § 974.06(1). In other words, Wisconsin
precedent further bolsters our understanding of Cherry motions
and § 974.06 motions as wholly distinct. Having found no
justification for the State's position in either the statutory
text or logic, we similarly determine that the case law likewise
lends no support.
¶53 For the reasons stated, Starks's Cherry motion did not
bar his subsequent § 974.06 motion. We turn now to the proper
pleading standard for ineffective assistance of appellate
counsel claims when a defendant alleges in a habeas petition
28
No. 2010AP425
that appellate counsel was deficient for not making certain
arguments.
C. Pleading Standard for Ineffective Assistance of
Appellate Counsel Claims in Habeas Petitions
1. General Principles of Ineffective Assistance of
Counsel
¶54 Article I, Section 7 of the Wisconsin Constitution,
and the Sixth Amendment of the United States Constitution, made
applicable to the states via the Fourteenth Amendment, entitle
every criminal defendant in our state to the effective
assistance of counsel. State v. Domke, 2011 WI 95, ¶34,
337
Wis. 2d 268,
805 N.W.2d 364; Evitts v. Lucey,
469 U.S. 387, 394-
95 (1985). This right applies to both a defendant's trial as
well as his direct appeal. Evitts,
469 U.S. at 396. In order
to establish a claim for ineffective assistance of counsel, the
defendant must show: (1) that counsel's performance was
deficient, and (2) counsel's deficiency prejudiced the
defendant. State v. Balliette,
2011 WI 79, ¶21,
336 Wis. 2d
358,
805 N.W.2d 334, cert. denied,
565 U.S. __,
132 S. Ct. 825
(2011). Satisfaction of the first prong requires a showing that
the defendant's attorney "made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by
the Sixth Amendment." Strickland v. Washington,
466 U.S. 668,
687 (1984). In evaluating deficiency, courts indulge in every
presumption that counsel was effective unless shown otherwise by
the defendant. Balliette,
336 Wis. 2d 358, ¶¶27-28. Similarly,
reviewing courts must be "highly deferential" when judging an
29
No. 2010AP425
attorney's strategic decisions, Domke, 337 Wis. 2d 268, ¶36
(citation omitted), and any decision made during the course of
representation is regarded as having been made for "tactical
reasons" in the absence of evidence to the contrary. Yarborough
v. Gentry,
540 U.S. 1, 8 (2003) (per curiam).
¶55 As to the second prong of the ineffective assistance
of counsel test, prejudice occurs when the attorney's error is
of such magnitude that there is a "reasonable probability" that
but for the error the outcome would have been different. State
v. Erickson, 227 Wis. 2d 758, 769,
569 N.W.2d 749 (1999).
Stated differently, relief may be granted only where there "is a
probability sufficient to undermine confidence in the outcome,"
i.e., there is a "substantial, not just conceivable, likelihood
of a different result." Cullen v. Pinholster,
563 U.S. __,
131
S. Ct. 1388, 1403 (2011) (internal quotation marks and citations
omitted).
2. Ineffective Assistance of Appellate Counsel
¶56 Turning to the specific issue here, the parties
dispute the appropriate standard a court should use in
determining whether a defendant received ineffective assistance
of appellate counsel because of counsel's failure to raise
certain arguments. Starks contends that all he must do to
demonstrate ineffectiveness is to show that appellate counsel's
performance was deficient and that it prejudiced him. The
State, on the other hand, argues that Starks must also establish
why the unraised claims of ineffective assistance of trial
counsel were "clearly stronger" than the claims that appellate
30
No. 2010AP425
counsel raised on appeal. We hold that the State has
articulated the proper standard.
¶57 The United States Court of Appeals for the Seventh
Circuit, in the context of a federal habeas corpus petition
raising ineffective assistance of appellate counsel, has stated:
When a claim of ineffective assistance of [appellate]
counsel is based on failure to raise viable issues,
the [trial] court must examine the trial record to
determine whether appellate counsel failed to present
significant and obvious issues on appeal. Significant
issues which could have been raised should then be
compared to those which were raised. Generally, only
when ignored issues are clearly stronger than those
presented, will the presumption of effective
assistance of counsel be overcome.
Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986) (emphasis
added).
¶58 Fourteen years later in Smith v. Robbins, 528 U.S. 259
(2000), the United States Supreme Court adopted this "clearly
stronger" standard. In that case, a California jury convicted
Robbins of second-degree murder and grand theft of an
automobile.
Id. at 266. Robbins' appointed appellate attorney
concluded that an appeal would be frivolous and filed the
equivalent of a "no-merit brief" with the California Court of
Appeal.
Id. at 266-67. The appellate court agreed that there
were no issues of arguable merit and affirmed his conviction.
Id. at 267. After the California Supreme Court denied his
petition for review, Robbins' state postconviction remedies were
exhausted, so he proceeded to file a habeas corpus petition in
federal court.
Id. His habeas petition alleged (among other
31
No. 2010AP425
claims) that he received ineffective assistance of appellate
counsel because his appellate attorney's no-merit brief did not
comply with Anders v. California, 386 U.S. 738, 744 (1967),
which "set forth a procedure for an appellate counsel to follow
in seeking permission to withdraw from the representation when
he concludes that an appeal would be frivolous; that procedure
includes the requirement that counsel file a brief referring to
anything in the record that might arguably support the appeal."
Robbins,
528 U.S. at 267-68 (citation omitted). The district
court concluded that there were at least two issues that the
appellate attorney should have raised in his no-merit brief and
thus reinstated Robbins' appeal.
Id. at 268. The Ninth Circuit
affirmed.
Id.
¶59 After granting certiorari, the U.S. Supreme Court held
that when a defendant (such as Robbins) alleges that his
appellate attorney was deficient for failing to file a merits
brief,11 all that a defendant must do to show deficiency is to
11
When an indigent defendant is appointed an attorney to
represent him on appeal, the attorney can either file a "merits
brief" (sometimes called a "brief on the merits") or a "no merit
brief." See, e.g., State ex rel. Seibert v. Macht, 2001 WI 67,
¶20 n.8,
244 Wis. 2d 378,
627 N.W.2d 881. A "merits brief" is a
traditional appellate brief in that it "sets out the issues to
be decided, the party's position, and the arguments and
authorities in support." Black's Law Dictionary 218 (9th ed.
2009). An attorney files a no-merit brief, however, when he
"concludes that a direct appeal on behalf of the [defendant]
would be frivolous and without any arguable merit within the
meaning of Anders v. California,
386 U.S. 738 (1967)." Wis.
Stat. § (Rule) 809.32(1)(a). The no-merit brief must "identify
anything in the record that might arguably support the appeal
and discuss the reasons why each identified issue lacks merit."
Rule 809.32(1)(a).
32
No. 2010AP425
demonstrate "that a reasonably competent attorney would have
found one nonfrivolous issue warranting a merits brief . . . ."
Id. at 288. However, when a defendant (such as Starks) alleges
that his appellate attorney was deficient for not raising a
particular claim, "it [will be] difficult to demonstrate that
counsel was incompetent" because the defendant must show that "a
particular nonfrivolous issue was clearly stronger than issues
that counsel did present." Id. (emphasis added). "In both
cases, however, the prejudice analysis will be the same." Id.
(footnote omitted).
¶60 We now adopt this "clearly stronger" pleading standard
for the deficiency prong of the Strickland test in Wisconsin for
criminal defendants alleging in a habeas petition that they
received ineffective assistance of appellate counsel due to
counsel's failure to raise certain issues.12 As we have
previously noted, "[w]e need finality in our litigation."
Escalona-Naranjo, 185 Wis. 2d at 185. We also must respect the
professional judgment of postconviction attorneys in separating
the wheat from the chaff. Cf. Jones v. Barnes,
463 U.S. 745,
753 (1983) ("A brief that raises every colorable issue runs the
12
The dissent takes issue with the fact that the "clearly
stronger" standard cannot be applied to every other type of
ineffective assistance claim, such as the failure to
investigate. See dissent, ¶99. Of course it can't. By
definition, the test is limited to claims alleging the failure
to raise arguments. Not every test can account for every
situation. That inevitable limitation did not trouble the U.S.
Supreme Court in Smith v. Robbins, 528 U.S. 259 (2000), and it
does not trouble us here.
33
No. 2010AP425
risk of burying good arguments . . . in a verbal mound made up
of strong and weak contentions.") (citation omitted). The U.S.
Supreme Court has "emphasized that the right to appellate
representation does not include a right to present frivolous
arguments," Robbins, 528 U.S. at 272, and that, in fact, an
appellate attorney has an ethical obligation not to "advance[e]
frivolous or improper arguments . . . ." McCoy v. Wis. Court of
Appeals,
486 U.S. 429, 435 (1988). The "clearly stronger"
standard achieves these objectives while at the same time
ensuring that a defendant whose appellate attorney did not raise
meritorious issues may still seek habeas relief.
3. The Dissent Misinterprets United States Supreme Court
Precedent
¶61 We are a bit mystified by the dissent's argument that
we are overlooking the U.S. Supreme Court's decision in Cullen,
specifically the language which states that "strict rules" are
not appropriate in evaluating ineffective assistance of counsel
claims. Dissent, ¶¶77, 89 (citing Cullen, 131 S. Ct. at 1406).
Pace Justice Bradley, she is disfiguring the meaning of this
quote by taking it grossly out of context. In Cullen, the
defendant Pinholster was convicted of first-degree murder and
sentenced to death by a California state jury.
131 S. Ct. at
1396-97. On mandatory appeal, the California Supreme Court
affirmed the judgment.
Id. at 1396. Pinholster subsequently
filed a habeas corpus petition in state court, alleging that his
trial counsel was ineffective for failing to adequately
investigate mitigating evidence at the penalty phase of
34
No. 2010AP425
Pinholster's murder trial. Id. The California Supreme Court
summarily dismissed the petition as meritless.
Id. Pinholster
then moved for federal habeas relief.
Id. The district court
granted Pinholster's petition, finding that his attorney failed
to adequately "investigate and present mitigation evidence at
the penalty hearing."
Id. at 1397 (internal quotation marks and
citation omitted). A three-judge panel of the Ninth Circuit
reversed, but the en banc panel reinstated the district court's
decision to grant Pinholster habeas relief.
Id.
¶62 One of the issues the Supreme Court granted review on
was "whether the Court of Appeals properly granted Pinholster
habeas relief on his claim of penalty-phase ineffective
assistance of counsel." Id. at 1398. In reviewing the en banc
decision, the Supreme Court observed that the Ninth Circuit
"drew from [our] cases a constitutional duty to
investigate . . . and the principle that it is prima facie
ineffective assistance for counsel to abandon their
investigation of the petitioner's background after having
acquired only rudimentary knowledge of his history from a narrow
set of sources."
Id. at 1406 (internal quotation marks,
citations, and alterations omitted). In reversing the Court of
Appeals the Supreme Court said, "[b]eyond the general
requirements of reasonableness, specific guidelines are not
appropriate."
Id. (internal quotation marks and citation
omitted). In other words, the Supreme Court was not talking
about pleading standards, as Justice Bradley believes, but
rather the Ninth Circuit's incorrect conclusion that Strickland
35
No. 2010AP425
imposes a constitutional duty upon counsel to investigate. See
id. at 1406-07.
¶63 What is even more puzzling about the dissent's point
is that Justice Thomas was the author of both Cullen and
Robbins, the opinion that adopted the "clearly stronger"
standard. In fact, Robbins cited to the Seventh Circuit's
opinion in Gray as support for the "clearly stronger" standard.
Robbins, 528 U.S. at 288. Pinholster does not even mention
Robbins, let alone suggest that the decision is no longer good
law. We assume the Supreme Court chooses its words and the
cases it cites to carefully, and is aware of its own recently-
decided precedent.
¶64 Out of convenience, the dissent elects to simply
ignore Robbins' reasoning and import, mentioning this highly
relevant case only twice in passing. See dissent, ¶¶86, 96. It
suits the dissent more to recite broad language from Strickland,
a case that bears no factual similarity to the present one,
rather than to deal meaningfully with Robbins, a case directly
on point and one in which the U.S. Supreme Court explicitly
approved of the "clearly stronger" standard in the specific
legal context at issue here. See, e.g., Robbins, 528 U.S. at
287-88 (making clear that the "clearly stronger" standard is an
iteration of Strickland's deficiency prong). The dissent finds
many words to criticize our analysis but can articulate none to
explain its departure from clear U.S. Supreme Court precedent.
36
No. 2010AP425
¶65 We now turn to whether the claims Starks believes
should have been raised on appeal are "clearly stronger" than
the claims he did raise.
D. Assessing the Merits of Starks's Ineffective
Assistance of Appellate Counsel Habeas Claims
¶66 As we have mentioned, Attorney Kagen argued on direct
appeal that: (1) the circuit court should have granted Starks's
request for the lesser-included offense instruction on second-
degree reckless homicide; (2) a mistrial should have been
declared when a witness sequestration order was violated; (3)
the circuit court erred in not dismissing the case based on the
prosecution's failure to turn over information relating to the
identity of "Junebug;" and (4) the evidence was inconsistent and
therefore insufficient to support the verdict. For Starks to
succeed on Strickland's deficiency prong with his claim that
Kagen rendered ineffective assistance of appellate counsel, he
must first show that the claims of ineffective assistance of
trial counsel that were not argued were "clearly stronger" than
the arguments Kagen did pursue.
¶67 Starks first contends that his trial counsel was
deficient for not calling Mario Mills as a witness. Mills,
recall, was originally Starks's co-defendant, as both were
charged with first-degree intentional homicide as a party to a
crime and possession of a firearm by a felon. Mills accepted a
plea bargain that reduced his charge to furnishing a firearm to
a felon. Starks believes that had Mills been called as a
witness, he could have undermined the State's case and presented
37
No. 2010AP425
a different account of what happened the afternoon of the
murder.13 His support for this? An affidavit signed by Mills
after he took the plea bargain and after Starks was convicted,
claiming, "I never seen Tramell Starks shoot anyone." Given
that Mills was charged with the same crimes as Starks and only
came out with this version of events after he took a plea
bargain, the circuit court was correct to dismiss this statement
as unreliable.
¶68 The second purported instance of ineffective
assistance of trial counsel that Starks points to is his
attorney's failure to call Dion Anderson as a witness. Anderson
was in a sheriff's van with two of the State's key witnesses——
Trenton Gray and Wayne Rogers——who were supposed to be separated
from one another per a court sequestration order. After
Anderson was contacted by a private investigator hired by
Starks, Anderson wrote back reporting that he heard how Gray and
Rogers "put everything together" to convict Starks.
¶69 When the issue of the violated sequestration order
came up at trial, the circuit court found——based on answers Gray
13
The State asserts that the primary reason Mills was not
called as a witness at Starks's trial was because Mills
"unexpectedly took a plea on the morning of Starks's trial, but
trial counsel did not have enough time at the eleventh-hour to
interview Mills, or anyone whose testimony was related to Mills'
statements." This is not quite accurate. It is true that
Starks and Mills were both set to stand trial on August 21,
2006, and that Mills did take a plea that day. However,
Starks's trial was rescheduled to December 4, giving Starks's
attorney three-and-a-half months to interview Mills should he
have so chosen.
38
No. 2010AP425
gave during his cross-examination——that he and Rogers did not
talk about the substance of their testimony. This finding was
upheld by the court of appeals in Starks's direct appeal.
Starks I, No. 2008AP790-CR, ¶¶19-22. Starks is thus asking us
to give him an opportunity to relitigate a dispositive factual
finding that has already been adjudicated, and we are not
permitted to do so on collateral review. See Allen, 328
Wis. 2d 1, ¶79.
¶70 Starks's third contention is that his trial attorney
should have investigated the phone records of Ray Gill
("Junebug"). At trial, Gray testified that he received a call
from Starks on the day of the murder, but that he called him
back using Gill's phone because, "I didn't trust my telephone
for the simple fact that I use it in my legitimate business as
well as my illegitimate business. Mr. Starks is important to
me, so, no, I didn't want to talk to him on my illegitimate
phone." Starks asserts that Gill's phone records would reveal
that no call was made between him and Gray. However, as the
circuit court noted, Starks did not actually produce any phone
records to support the veracity of this claim. Much like
Starks's second proposed instance of ineffective assistance of
counsel, this is nothing more than a conclusory allegation.
¶71 Finally, Starks believes his trial attorney was
deficient for not calling his father and grandmother——Stanley
Daniels and Mary McCullum——to testify. Daniels and McCullum
were present at the funeral where Gray testified that Starks
told him he wanted to murder Carvius Williams for talking to the
39
No. 2010AP425
police about Starks's involvement in Weddle's death. Signed
affidavits by Daniels and McCullum stated that they did not see
Starks and Gray have a conversation at the funeral. Starks
believes their testimony would have undercut Gray's credibility.
¶72 Had Daniels and McCullum testified, it is possible the
jury would have been less likely to believe Gray's testimony.
But it is also possible that a jury would not have believed
them, especially given their familial connection to Starks.
Furthermore, the jury may have doubted their omnipresence. As
the circuit court nicely put it, "[t]here is not a reasonable
probability that the jury would have found it reasonable to
believe that both the defendant's grandmother and his father had
their eyes on the defendant's every single movement on the day
of the funeral." It is easy to imagine why Starks's trial
counsel opted not, for strategic reasons, to put Daniels and
McCullum on the stand. See Domke, 337 Wis. 2d 268, ¶49 ("This
court will not second-guess a reasonable trial
strategy . . . ."). Starks's final argument therefore fails as
well.
¶73 In short, the instances of ineffective assistance of
trial counsel that Starks believes Kagen should have argued on
appeal are either unsubstantiated, unpersuasive, or previously
adjudicated. They are in no way "clearly stronger" than the
arguments Kagen raised. We therefore hold that Kagen was not
deficient for failing to make these arguments, and thus need not
decide whether he was prejudiced. See Strickland, 466 U.S. at
697 (if a defendant cannot satisfy one prong of the
40
No. 2010AP425
ineffectiveness test, a court need not reach the other). As
Starks did not receive ineffective assistance of appellate
counsel, we affirm his conviction.
V. CONCLUSION
¶74 We hold that as sentence modification is a distinct
procedure from Wis. Stat. § 974.06 motions, a defendant is not
required to shoehorn ineffective assistance of counsel arguments
into a Cherry motion. On the question of the proper pleading
standard, we hold that a defendant who argues he received
ineffective assistance of appellate counsel in a habeas petition
because certain arguments were not raised must show why the
claims he believes should have been raised on appeal were
"clearly stronger" than the claims that were raised.
¶75 Finally, we conclude that because the arguments about
trial counsel's ineffectiveness are not clearly stronger than
the arguments Starks made on direct appeal, Starks did not
receive ineffective assistance of appellate counsel and is not
entitled to habeas relief. The decision of the court of appeals
is therefore affirmed.
By the Court.—The decision of the court of appeals is
affirmed.
41
No. 2010AP425.awb
¶76 ANN WALSH BRADLEY, J. (dissenting). I agree with
the majority that "Starks's Cherry motion did not bar his
subsequent § 974.06 motion," majority op., ¶53. However, I part
ways when it adopts a new bright-line test for evaluating claims
of deficient performance of counsel.1
¶77 A recent United States Supreme Court decision
addressing ineffective assistance of counsel claims under
Strickland v. Washington, 466 U.S. 668 (1984) declined to adopt
bright-line standards for evaluating deficiency. Cullen v.
Pinholster,
131 S. Ct. 1388, 1406 (2011). It cautioned against
"attributing strict rules" to its jurisprudence in this area of
the law.
Id.
¶78 Nevertheless, the majority today ignores the
admonition of the United States Supreme Court and adopts a new
threshold bright-line test for evaluating deficient performance.
It articulates the new test as follows: "a defendant who argues
in a habeas petition that he received ineffective assistance of
appellate counsel because certain arguments were not raised must
demonstrate that the claims he believes should have been raised
on appeal were 'clearly stronger' than the claims that were
raised." Majority op., ¶6.
¶79 The new bright-line test adopted by the majority today
is inconsistent with the Strickland test for deficient
performance, which requires an evaluation of reasonableness
1
I also part ways with the majority when it declares,
without the benefit of briefing or argument, that it has
jurisdiction to determine the issues presented by the parties.
1
No. 2010AP425.awb
under the totality of the circumstances. Although the "clearly
stronger" test is a circumstance to consider under the totality
of the circumstances and may be a useful tool in determining
deficient performance, the majority's bright-line, threshold
application of that test has been rejected by other state
supreme courts and is unsupported by our own precedent.
¶80 Additionally, the analysis employed by the majority in
applying its new test is unworkable because it cannot
practically be applied in many circumstances. The overarching,
unworkable scope of this test is apparent in the haphazard way
the majority analyzes Starks's claims in this case.
¶81 Accordingly, I respectfully dissent.
I
¶82 In Strickland v. Washington, 466 U.S. 668 (1984), the
United States Supreme Court fashioned the quintessential test
for deficient performance of counsel: whether counsel acted
unreasonably under the totality of the circumstances.2
2
At the outset, the majority recognizes a potential problem
with the court's jurisdiction in this case. Majority op., ¶4.
It acknowledges that because Starks "improperly filed his claim
with the circuit court, it should have been dismissed and not
allowed to proceed to an appeal." Id., ¶35.
Nevertheless, essentially for reasons of judicial economy,
the majority decides to address the merits of the issues and in
a cursory fashion concludes Starks's decision to file in the
wrong court was a matter of competence, not jurisdiction. Id.,
¶¶36-40.
It is unclear whether the majority is correct in its
cursory conclusion that the erroneous filing implicates
competence rather than jurisdiction. The issue was neither
raised nor briefed by the parties.
2
No. 2010AP425.awb
Strickland, 466 U.S. at 688 ("the performance inquiry must be
whether counsel's assistance was reasonable considering all the
circumstances"). Although the majority pays lip service to
Strickland and decisions of this court applying Strickland, its
analysis ignores the Strickland test. Majority op., ¶54.
Article VII, Section 8 of the Wisconsin constitution,
entitled "Circuit court; jurisdiction" provides that "[e]xcept
as otherwise provided by law, the circuit court shall have
original jurisdiction in all matters civil and criminal[]."
(emphasis added.) In State v. Knight, a unanimous decision of
this court, we concluded that the law provided an ineffective
assistance of appellate counsel claim must be brought in the
court of appeals. 168 Wis. 2d 509, 522,
484 N.W.2d 540 (1992)
("We conclude that sec. 974.06 does not authorize a circuit
court to resolve claims of ineffective assistance of appellate
counsel.").
Because Knight stated that the circuit court is not
"authorize[d]" to hear a motion addressing ineffective
assistance of appellate counsel, it arguably falls within the
constitutional phrase "[e]xcept as otherwise provided by law."
The analysis of the court of appeals in State ex rel. Rothering
v. McCaughtry, 205 Wis. 2d 675, 677,
556 N.W.2d 136 (Ct. App.
1996) supports that the Knight court discussed "jurisdiction,"
not competency. Therefore, the circuit court may have lacked
jurisdiction to hear Starks's motion.
If the circuit court lacked jurisdiction, its order
addressing the merits of Starks's motion was a nullity. If its
order was a nullity, then likewise any decision addressing the
merits by the court of appeals and by this court are likewise
nullities and would have no precedential value.
Accordingly, I determine that supplemental briefs should be
ordered addressing this issue. Because jurisdiction cannot be
conferred by mistake or stipulation, this issue is potentially
dispositive. Lassa v. Rongstad, 2006 WI 105, ¶34,
294 Wis. 2d
187,
718 N.W.2d 673. The majority should not resolve such an
important question seemingly unfettered by the lack of argument
or analysis, the words of the constitution, and our prior
unanimous precedent.
3
No. 2010AP425.awb
¶83 Instead, the majority introduces a new, bright-line
test inconsistent with the test set out in Strickland. Rather
than following the very cases and statutes it cites, it
introduces a new threshold test: "a defendant who argues he
received ineffective assistance of appellate counsel in a habeas
petition because certain arguments were not raised must show why
the claims he believes should have been raised on appeal were
'clearly stronger' than the claims that were raised." Majority
op., ¶74.
¶84 This new standard is wholly inconsistent with
Strickland, which requires an evaluation of reasonableness under
the totality of the circumstances. 466 U.S. at 695. A bright-
line standard is not only incompatible with Strickland, it is
its antithesis.
¶85 The Sixth Amendment to the United States Constitution
guarantees that an accused shall "have the Assistance of Counsel
for his defence." The United States Supreme Court has
additionally recognized that the constitutional right to counsel
is "the right to the effective assistance of counsel."
Strickland, 466 U.S. at 686 (quoting McMann v. Richardson,
397
U.S. 759, 771 n. 14 (1970)).
¶86 The Strickland test for ineffective assistance of
counsel remains the lodestar of all ineffective assistance
determinations to this day. The United States Supreme Court
set forth two elements to establish ineffective assistance of
counsel: deficient performance and prejudice. Id. at 687; see
also Smith v. Robbins, 528 U.S. 259, 285 (2000) ("the proper
4
No. 2010AP425.awb
standard for evaluating Robbins' claim that appellate counsel
was ineffective in neglecting to file a merits brief is that
enunciated in Strickland . . . .").
¶87 To establish deficient performance, "the defendant
must show that counsel's representation fell below an objective
standard of reasonableness" under prevailing professional norms.
Strickland, 466 U.S. at 687-88. Judicial scrutiny of counsel's
performance must be "highly deferential."
Id. at 689. Courts
are to determine whether "in light of all the circumstances, the
identified acts or omissions [of counsel] were outside the wide
range of professionally competent assistance."
Id. at 690.
¶88 Evaluating whether one argument is "clearly stronger"
than another is not the test for ineffective assistance of
appellate counsel. Rather it is a factor to consider when
applying the Strickland test.
¶89 A recent United States Supreme Court decision
addressing ineffective assistance of counsel claims under
Strickland declined to adopt bright-line standards for
evaluating deficiency, and cautioned against "attributing strict
rules" to its jurisprudence in this area of the law. Cullen,
131 S. Ct. at 1406 ("[b]eyond the general requirement of
reasonableness, 'specific guidelines are not appropriate.
[Citing Strickland at 688]'").
¶90 Other decisions of the United States Supreme Court
have further emphasized the highly individualized nature of the
task of evaluating whether counsel rendered constitutionally
effective assistance. See, e.g., Williams v. Taylor, 529 U.S.
5
No. 2010AP425.awb
362, 391 (2000) ("the Strickland test 'of necessity requires a
case-by-case examination of the evidence[].'"); Premo v. Moore,
131 S. Ct. 733, 742 (2011) (the deficiency inquiry varies at
different stages of the case). A bright-line standard for
evaluating deficiency is contrary to this United States Supreme
Court case law.
¶91 Not only is the majority's bright-line test for
deficient performance inconsistent with Strickland's test for
deficient performance, it overstates the case from which it
borrows the phrase "clearly stronger." In Gray v. Greer, 800
F.2d 644 (7th Cir. 1985), the defendant alleged that his
appellate counsel was ineffective. The district court concluded
that appellate counsel was not ineffective based solely on
review of the defendant's brief on direct appeal.
Id. at 645-
646.
¶92 The Seventh Circuit concluded that when a claim of
ineffective assistance of counsel is based on failure to raise
viable issues, the district court is to "examine the trial court
record to determine whether appellate counsel failed to present
significant and obvious issues on appeal." Id. at 646. It
provided guidance as to how to examine the trial record, stating
that "[s]ignificant issues that could have been raised should
then be compared to those which were raised."
Id. Furthermore,
the court observed that "[g]enerally, only when ignored issues
are clearly stronger than those presented, will the presumption
of effective assistance of counsel be overcome."
Id. (emphasis
added).
6
No. 2010AP425.awb
¶93 The majority reads Gray in an overbroad manner.
Although comparing the arguments and determining that ignored
claims are clearly stronger than those presented is certainly
one way of showing deficiency, it is not the only way.3
¶94 Other state supreme courts have emphasized the word
"generally" in Gray and have specifically declined to adopt the
bright-line "clearly stronger" test that is embraced by the
majority today. They recognize that a bright-line test is too
rigid, noting that not even Gray espoused the "clearly stronger"
standard as the only way to prove deficient performance. See
Shorter v. Waters, 571 S.E.2d 373, 376 (Ga. 2002) (the clearly
stronger test does not always apply because "[s]ituations may
arise when every error enumerated by appellate counsel on appeal
presented a strong, nonfrivolous issue but counsel's performance
was nonetheless deficient because counsel's tactical decision
not to enumerate one rejected error was an unreasonable one
which only an incompetent attorney would adopt."); Carpenter v.
State of Tennessee,
126 S.W.3d 879, 888 (Tenn. 2004) (discussing
Gray and declining to "hold that the only way to show deficient
3
For example, another way to show deficient performance
includes showing that the failure to raise an issue was
unreasonable because it was due to oversight rather than an
intentional, reasoned strategy. Wiggins v. Smith, 539 U.S. 510,
534 (2003). Defense counsel has a "duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary." Strickland v.
Washington,
466 U.S. 668, 690-691 (1984). If counsel chooses
issues based on less than a full investigation, the deficiency
determination turns on whether the failure to investigate was
itself unreasonable, not on whether that attorney would have
chosen to raise the issues discovered by such an investigation.
Wiggins v. Smith,
539 U.S. at 522-523.
7
No. 2010AP425.awb
performance of appellate counsel in a case involving the
omission of an issue on appeal is to establish that the omitted
issue was clearly stronger than the issues that counsel did
present on appeal." (Emphasis in original.)).
¶95 Furthermore, the bright-line standard is unsupported
by prior precedent of this court. This court has long
recognized Strickland as providing the framework for evaluating
claims of ineffective assistance of counsel. State v. Moffett,
147 Wis. 2d 343, 352,
433 N.W.2d 572 (1989) ("A claim of
ineffective assistance of counsel brought under the sixth
amendment of the United States Constitution must meet the test
articulated in Strickland v. Washington . . . and followed by
this court in State v. Pitsch . . . and State v.
Johnson . . . ." (Citations omitted.)).
¶96 Recently, in a case involving a § 974.06 motion based
on deficiency of postconviction counsel, this court recognized
again that Strickland guides this court's analysis of
ineffective assistance of counsel, and allows for various ways
to show deficient performance. State v. Balliette, 2011 WI 79,
¶64,
336 Wis. 2d 358,
805 N.W.2d 334 ("For example, Balliette
could have alleged such deficiency by showing that counsel's
performance was 'objectively unreasonable . . . in failing to
find arguable issues to appeal,' as the Supreme Court described
it in Smith [v. Robbins].").
¶97 This recent decision, as well as the substantial body
of Wisconsin case law interpreting Strickland, shows that this
court has ably evaluated claims of ineffectiveness of counsel
8
No. 2010AP425.awb
without inventing a bright-line standard. The majority's new
threshold bright-line test is inconsistent with the totality of
the circumstances test set forth by the United States Supreme
Court, and as interpreted by other states and prior decisions of
this court.
II
¶98 When the majority turns to evaluate the merits of
Starks's claims, it is apparent that its new "clearly stronger"
test is unworkable as a bright-line test because it cannot be
practically applied in many circumstances. Although claims of
ineffective assistance of appellate counsel may often require a
court to weigh the relative merits of claims that were raised
and those that were not raised, that will not always be the
case.
¶99 The majority's "clearly stronger" test has no
practical application in many circumstances. For example, under
Strickland, counsel has a duty to "make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary." 466 U.S. at 691.
Accordingly, a court does not need to determine whether a claim
that was not raised is "clearly stronger" than those that were
raised when the allegation of ineffectiveness is premised upon a
failure to adequately investigate a claim in the first place.
¶100 Likewise, a failure to raise a claim may simply be due
to oversight rather than an intentional strategy. Wiggins v.
Smith, 539 U.S. 510, 534 (2003). Sometimes counsel simply
forgets to raise claims, irrespective of any evaluation of their
9
No. 2010AP425.awb
relative strength. A court does not need to determine whether a
claim that was not raised is "clearly stronger" than those that
were raised when counsel acts unreasonably due to oversight.
¶101 Even if counsel properly identifies an issue that is
the strongest issue available, his performance may also be
considered deficient when the claim is not adequately raised——
such as when there is a failure to conduct research sufficient
to support the claim, a failure to present necessary evidence,
or a failure to adequately argue the claim. A court does not
need to determine whether a claim that was not raised is
"clearly stronger" than those that were raised when the focus of
the inquiry is exclusively on the claim that was raised
inadequately.
¶102 As the above examples illustrate, the majority's
"clearly stronger" test is simply inapplicable in many
circumstances. Yet, its holding appears to premise deficient
performance on evaluating the relative strength of the claims
raised and not raised regardless of the reasonableness under the
totality of the circumstances. As a practical matter, such a
test cannot always apply whenever a defendant "argues he
received ineffective assistance of appellate counsel in a habeas
petition because certain arguments were not raised." Majority
op., ¶74.
¶103 The overarching, unworkable scope of the majority's
new bright-line test is apparent in the haphazard way it
evaluates Starks's motion in this case. After paying lip
service to Strickland and other cases setting forth a standard
10
No. 2010AP425.awb
for ineffectiveness, majority op., ¶¶54-55, the only test it
really applies is its "clearly stronger" test. Id., ¶73 (the
claims raised by Starks "are in no way "clearly stronger" than
the arguments Kagen raised.").
¶104 Instead of evaluating the underlying allegations of
ineffectiveness of trial counsel on their merits, the majority
simply dismisses them out of hand as "unsubstantiated,
unpersuasive, or previously adjudicated." Majority op., ¶73.
Because it concludes that the underlying claims of ineffective
trial counsel must fail——even though it has not really evaluated
the underlying ineffectiveness claims under Strickland——the
majority concludes that the claims not raised are not "clearly
stronger" and no deficient performance exists. Majority op.,
¶73.
¶105 Additionally, the majority's analysis disregards or
dismisses the facts alleged in Starks's motion. In one
instance, it evaluates credibility by deriding allegations
advanced in the motion as "unreliable." Majority op., ¶67. By
making determinations of reliability and credibility, the
11
No. 2010AP425.awb
majority skips an evidentiary hearing where those very issues
should be determined.4
¶106 Later, it speculates that it is "easy to imagine why
Starks's trial counsel opted not, for strategic reasons," to put
two potential witnesses on the stand. Majority op., ¶72. The
majority cannot know what reason trial counsel had, if any, for
failing to call two witnesses. Those reasons are to be elicited
at an evidentiary hearing, not in reviewing an initial motion.
¶107 This type of a half-hearted analysis is not a reasoned
application of constitutional standards. It further illustrates
the overarching, unworkable nature of the bright-line test that
is adopted by the majority today.
¶108 Accordingly, for the reasons set forth above, I
respectfully dissent.
¶109 I am authorized to state that CHIEF JUSTICE SHIRLEY S.
ABRAHAMSON and JUSTICE N. PATRICK CROOKS join this dissent.
4
The majority's determination of reliability can be
understood as a determination of credibility. Credibility
determinations are a matter for the circuit court at an
evidentiary hearing, not in reviewing an initial motion. See
First Nat. Bank of Appleton v. Nennig, 92 Wis. 2d 518, 529,
285
N.W.2d 614 (1979). Although sometimes a statement can be
considered not credible as a matter of law, there is no
indication here that the testimony would inherently be "so
confused, inconsistent, or contradictory" as to be considered
not credible before anyone has even taken the stand. State ex
rel. Brajdic v. Seber,
53 Wis. 2d 446, 450,
193 N.W.2d 43
(1972).
12
No. 2010AP425.awb
1
