On Point: E. No-Merit Reports

State v. Chavis T. Sheriff, 2011AP1202, District 2, 7/25/12

court of appeals decision (not recommended for publication); case activity

Sheriff’s failure to respond to a no-merit report operates as a serial litigation bar to his subsequent, § 974.06 attempt to argue that trial and postconviction counsel were ineffective. State v. Allen, 2010 WI 89, 328 Wis. 2d 1, 786 N.W.2d 124, discussed and applied.

State v. Jeffery G. Sutton, 2012 WI 23, reversing summary order of court of appeals; for Sutton: Kaitlin A. Lamb, Colleen Ball, SPD, Milwaukee Appellate;  for amicus, WACDL: Robert R. Henak; case activity

Although presented with an unpreserved but seemingly meritorious issue (defective jury-waiver colloquy) on § 809.32 no-merit review, the court of appeals nonetheless accepted counsel’s no-merit report, thereby affirming Sutton’s conviction, and instructed him to seek relief pursuant to § 974.06 even though he was no longer in custody and the remedy was thus illusory.

on review of summary order (District 1); for Sutton: Colleen Ball, SPD, Milwaukee Appellate;  case activity

No-Merit Appeal Procedure – Remand for Evidentiary Hearing

Issues: 

1. (Composed by On Point:) Whether § 809.32(1)(g) requires the court of appeals to remand a case to the circuit court for an evidentiary hearing where, during the course of a no-merit proceeding, an arguably meritorious claim for ineffective assistance of postconviction counsel becomes apparent?

7th circuit decision

Habeas – Appeal: Appointed Counsel’s Obligation to Argue Issues

The court clarifies the “scope” of counsel’s responsibilities when appointed on habeas appeal. Counsel has no obligation to argue claims not certified for appeal by the court. Therefore, if after independent review, “counsel agrees that the non-certified claims are not debatable, he or she can safely set aside the non-certified claims notwithstanding the petitioner-appellant’s desire to pursue those claims on appeal.”

7th circuit court of appeals decision, on habeas review of summary order of Wisconsin court of appeals

Habeas – Procedural Default & No-Merit Report

Johnson’s failure to assert an ineffective assistance of (trial) counsel claim in response to his appellate attorney’s no-merit report did not procedurally default that claim for purposes of subsequent collateral attack. The court follows Page v. Frank, 343 F.3d 901 (7th Cir.

State v. Aaron A. Allen, 2010 WI 89, affirming unpublished decision; for Allen: Robert R. Henak; BiC; Resp.; Reply

¶4   We conclude, following Wis. Stat. § 974.06, that a defendant is not required to file a response to a no-merit report. This means he is not required to raise issues in response to a no-merit report.

court of appeals decision; for Brown: Paul Bonneson; for SPD: Colleen D. Ball, Milwaukee Appellate

No-Merit Report – Counsel Appointed by Circuit Court Rather Than SPD
Issue/Holding:

¶7        The statutes referenced in Wis. Stat. Rule 809.32(1)(a), relate to the appointment of counsel by the state public defender. Thus, pursuant to Rule 809.32(1)(a), an attorney appointed by the state public defender may file a no-merit report using the statutory scheme set out in Rule 809.32.

State v. Carl Davis Brown, Jr., 2009 WI App 169
For Brown: Paul G. Bonneson
For SPD: Colleen D. Ball, Milwaukee Appellate

Issue/Holding:

¶7        The statutes referenced in Wis. Stat. Rule 809.32(1)(a), relate to the appointment of counsel by the state public defender. Thus, pursuant to Rule 809.32(1)(a), an attorney appointed by the state public defender may file a no-merit report using the statutory scheme set out in Rule 809.32.

State ex rel. Jarrad T. Panama v. Hepp, 2008 WI App 146
For Panama: Philip J. Brehm

Issue/Holding: Panama’s collateral attack on a sentence previously affirmed by no-merit appeal may be canalized into a “Knight” habeas petition, at least where the challenge is based on a potential defect apparent in the record.

The court continues to dredge up the terrain between direct appeal and collateral attack: Knight falls on one side,

State v. Michael J. Parent, 2006 WI 132, on certification
For Parent: William E. Schmaal, SPD, Madison Appellate
Amicus: Meredith J. Ross & William E. Rosales

Issue/Holding: (Procedure generally described, State v. Christopher G. Tillman, 2005 WI App 71, ¶17, quoted with approval, ¶¶18-23; see also ¶¶35-41, taking note of Wilkinson v. Cowan, 231 F.3d 347 (7th Cir.