Jones v. Berge

Decision Date21 February 2003
Docket NumberNo. 00-C-0130.,00-C-0130.
CourtU.S. District Court — Eastern District of Wisconsin
PartiesDennis E. JONES, Petitioner, v. Gerald BERGE, Respondent.

Marguerite M. Moeller, for Defendant or Respondent.

DECISION AND ORDER

ADELMAN, District Judge.

Dennis E. Jones, a Wisconsin state prisoner, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1995 convictions of armed robbery, felon in possession of a firearm, and possession of a short barreled shotgun, for which he was sentenced to forty-six years in prison. Petitioner raises seven issues but one is dispositive: he was denied the assistance of counsel in connection with his direct appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Thus, I will issue a writ of habeas corpus requiring respondent to release petitioner within 120 days unless the State of Wisconsin grants him a new appeal with the assistance of appointed counsel. See Betts v. Litscher, 241 F.3d 594 (7th Cir. 2001); Walker v. McCaughtry, 72 F.Supp.2d 1025 (E.D.Wis.1999); Wisconsin ex rel. Toliver v. McCaughtry, 72 F.Supp.2d 960 (E.D.Wis.1999); Dumer v. Berge, 975 F.Supp. 1165 (E.D.Wis.1997).

I. BACKGROUND

On June 22, 1995, petitioner was convicted by a jury of the armed robbery of a Kenosha, Wisconsin delicatessen, possession of a firearm as a felon, and possession of a short-barreled shotgun.1 Petitioner filed a notice of intent to pursue post-conviction relief in the trial court, and the State Public Defender ("SPD") appointed attorney John Anthony Ward to represent him on appeal. Ward obtained the transcripts of petitioner's trial and an extension of time to file a post-conviction motion or notice of appeal until March 29, 1996. Ward and petitioner conferred on or about March 27, and Ward advised petitioner that he believed petitioner had no meritorious appellate issues. Ward was about to advise petitioner that he (Ward) could either file a no merit report or withdraw without filing the report and allow petitioner to proceed pro se (and apparently to explain what that meant), when petitioner told Ward that he was fired. Petitioner asked Ward to contact the SPD and have a new appellate attorney appointed for him.

Ward apparently called the Appellate Division of the SPD on March 28 and spoke to a secretary, who reportedly advised him to write a letter to the SPD explaining the situation and not to worry about the March 29 deadline. On April 8, Ward wrote to the SPD relaying his conversation with petitioner and stating that he was closing his file. Ward did not file a motion to withdraw or otherwise advise the circuit court or court of appeals, and the March 29 deadline passed. On or about July 17, petitioner wrote a letter to Ward stating that because Ward had declined to appeal his case it was agreed that Ward would withdraw and send his case back to the SPD for appointment of new counsel, and inquiring whether Ward had done so. On July 22, Ward's paralegal replied that the file had been closed, and that if petitioner wanted to pursue the matter he would have to do so on his own.

Unsatisfied, petitioner wrote to the Wisconsin Court of Appeals asking that counsel be appointed for him. The court ordered responses from Ward and the SPD regarding the status of Ward's representation. Ward advised the court that petitioner had fired him on March 27, and that he had taken no further action other than to provide petitioner with the file and ask the SPD to appoint another lawyer. The SPD advised that successor counsel would not be appointed because petitioner had not advised it of any meritorious issues for appeal.

On August 12, 1996, the court of appeals entered an order advising petitioner that he had three options: (1) allow Ward to continue representing him, which probably meant the filing of a no merit report; (2) discharge Ward and proceed pro se; or (3) discharge Ward and give up his appeal. The court explained that if he chose the first option he would have the opportunity to respond to the no merit report and raise issues he believed had merit.

On August 13, petitioner wrote to the SPD, stating that he had meritorious appellate issues, that he was not prepared to proceed pro se, and that he would not waive his right to appeal. However, the SPD declined to appoint new counsel for him. On August 29, petitioner responded to the August 12 order of the court of appeals, telling the court that Ward had not properly reviewed his case and had skipped a scheduled phone conference. Petitioner also stated that he was not learned in the law and, again, asked that a new lawyer be appointed. If the court declined, he wrote, it would be forcing him "to go pro se knowing that he is incompetent." (R. 78, Ex. 2 at 2.) He therefore stated that the options for the court were to "(1) appoint defendant counsel, or (2) force him to incompetently go pro se." (Id.)

On September 10, the court of appeals issued an order stating that petitioner had alleged that Ward had not done his job and that he wanted a new lawyer, but that it could not determine whether Ward had properly evaluated the case unless Ward was given the opportunity to explain his conclusion in a no merit report. Therefore, it declined to appoint new counsel. The court then wrote: "The defendant states that in the absence of the appointment of new counsel, he wishes to proceed pro se." (R. 50, Ex. 5 at 2.) It then discharged Ward and granted petitioner an extension of time to file a notice of appeal or post-conviction motion.

Petitioner filed a pro se post-conviction motion in the circuit court, lost, appealed, and lost again in the court of appeals. State v. Jones, 220 Wis.2d 714, 583 N.W.2d 673 (Ct.App.1998), 1998 Wisc.App. LEXIS 701. The Wisconsin Supreme Court denied his request for review. State v. Jones, 222 Wis.2d 674, 589 N.W.2d 628 (1998).

Petitioner then filed a habeas petition in this court. He raised the issue of ineffective assistance of appellate counsel but conceded that he had not exhausted it in the state courts. I dismissed the case without prejudice but advised petitioner that he could re-open the case after exhausting his state remedies. Jones v. Berge, 101 F.Supp.2d 1145 (E.D.Wis.2000).

On June 28, 2000 petitioner filed a petition for a writ of habeas corpus under State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992) in the Wisconsin Court of Appeals.2 He claimed that "the dynamics of a no-merit [report] were never explained" and that he "equated a no-merit brief with a waiver of his appeal." (R. 28, Ex. H at 5.) He wrote that he declined all three options provided by the court of appeals in its August 12, 1996 order but was forced to represent himself without any evaluation of his competency to proceed pro se, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). He therefore argued that he was denied the right to appellate counsel provided in Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Petitioner also argued that Ward had been ineffective because he did nothing to advance the appeal despite the existence of meritorious issues.

On July 25, 2000, the court of appeals issued an ex parte order denying the petition. The court stated that petitioner responded to its August 12, 1996 order "with a request for the appointment of new counsel because Attorney Ward had not performed sufficiently. In the event new counsel was not appointed, Jones elected to proceed pro se although indicating reluctance to do so." (R. 28, Ex. I at 3.) The court noted that petitioner then proceeded on his own, and his conviction was affirmed.

The court declined to "address any aspect of Attorney Ward's performance because it did not occur before this court." (Id. at 4.) It stated that petitioner's refusal to allow Ward to file a no merit report foreclosed the court from evaluating his competency.

The court rejected petitioner's claim that he did not understand the dynamics of a no merit report, stating:

Jones was told that he could compel the filing of a no merit report by both Attorney Ward and this court. This was adequate information about the no merit report. Indeed, in a letter to the State Public Defender, Jones demonstrated his familiarity with the significance of a no merit report when he indicated that in a separate criminal appeal, he had gotten an attorney from Attorney Ward's office (Attorney Lynn Bureta) replaced when that attorney indicated she wanted to file a no merit report.

(Id. at 4, citation omitted.)

The court next stated that it had "no independent duty to determine if Jones was competent to represent himself after he had "waiv[ed] the right to a no merit report by appointed counsel." (Id.) In any event, it wrote that: competency can only be seriously questioned when a "specific problem or disability can be identified which may prevent a meaningful defense from being offered, should one exist." Not then, and not now, does Jones suggest any particular disability that prevents competent representation on appeal. He does not contend that he lacked the necessary education, literacy or fluency in English. Indeed, his motions and appellant's brief were literate and fluent. There was no reason to suspect Jones's competency to proceed pro se after he rejected counsel's intent to file a no merit report. (Id. at 5, citation omitted, quoting State v. Ruszkiewicz, 237 Wis.2d 441, 460, 613 N.W.2d 893 (Ct.App.2000).)

Finally, the court rejected petitioner's claim that it "compelled him to choose between two constitutionally offensive options of either accepting Attorney Ward's no merit report or proceeding, pro se. Since Jones had the opportunity for representation by counsel but directed counsel not to file a no merit report, he cannot complain that he was denied counsel." (Id.)

The Wisconsin Supreme Court denied petitioner's request for...

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