Oimen v. McCaughtry
| Decision Date | 09 December 1997 |
| Docket Number | No. 96-2452,96-2452 |
| Citation | 130 F.3d 809 |
| Parties | James Arthur OIMEN, Petitioner-Appellant, v. Gary McCAUGHTRY, Warden, Waupun Correctional Institution, and James E. Doyle, Wisconsin Attorney General, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Howard B. Eisenberg (argued), Milwaukee, WI, for Petitioner-Appellant.
Sally L. Wellman (argued), Office of the Atty. General, Wisconsin Dept. of Justice, Madison, WI, for Respondent-Appellee.
Before CUMMINGS, MANION and EVANS, Circuit Judges.
James Oimen was part of an armed robbery gone awry. After his conviction in a Wisconsin state court, and his subsequent appeals, he filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. His petition was denied and he now brings to us a single issue: whether he was denied his right to counsel on his direct appeal, a Due Process right recognized in Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). In order to understand the issue we must see the context in which it arose.
In December 1988 in Dane County, Wisconsin, Oimen and two buddies, Shawn McGinnis and David Hall, decided to rob Tom Stoker, a bookie Oimen knew, who, he thought, had large sums of money at his house. Because Stoker would recognize him, Oimen did not want to enter the house, but he drew a diagram of the layout for the robbers. McGinnis and Hall went to the house, McGinnis armed with a pellet gun that looked like something more deadly. Oimen was outside in the getaway truck. At about 11:30 p.m. Stoker was on the telephone when the line went dead. He became suspicious and got out his Winchester 308 automatic hunting rifle and laid it down in his bedroom. Going to his kitchen and turning on his porch light, he saw the robbers standing outside his door. Stoker ran for his gun, loaded it, and confronted the men; he saw McGinnis with what looked like a gun. McGinnis and Hall, seeing Stoker's gun, attempted to run. But when Stoker chased the men to his kitchen, it appeared to him that McGinnis was coming back into the house with a pointed gun. Stoker shot McGinnis. Hall helped the wounded McGinnis toward the road.
Meanwhile, Oimen, sitting outside in the truck, sensed that something was wrong, so he started the pickup truck and took off. Hall saw that Oimen was gone, went back to McGinnis, but ran off when he heard police sirens, leaving McGinnis to die of his wounds.
Oimen, who is the person with whom we are concerned, was charged with attempted armed robbery, felony murder, and armed burglary, as a party to the crime on each count. Attempted armed robbery was the felony underlying the felony murder charge. A Dane County jury convicted Oimen on all counts.
The charging decision catches the eye. A killing occurred during the commission of a felony, but, interestingly, the trigger was pulled not by one of the felons, but by the person who was being robbed. The charge also caught the eye of one of the judges on the Wisconsin Court of Appeals, who was convinced that the felony murder statute did not apply in this situation. The Wisconsin Supreme Court heard Oimen's case pursuant to its sparingly used power of discretionary review. Oimen ultimately lost on the issue-- court deciding that the felony murder statute applied to these facts. State v. Oimen, 184 Wis.2d 423, 516 N.W.2d 399 (1994). So Oimen's appeal, though ultimately a loser, had more real substance than we find in most criminal appeals.
We relate this history because it seems that Oimen did not appreciate that his appeal raised a significant issue. In fact, he wanted his appointed counsel for his direct appeal to the court of appeals to raise a more mundane issue as well, that of ineffective assistance of trial counsel. Counsel declined, and he and Oimen had a falling out which precipitated the issue before us. Again, we provide a few details.
Oimen was initially provided counsel for his first appeal as of right to the Wisconsin Court of Appeals when the State Public Defender's Office appointed appellate counsel for him. The attorney, Jack Schairer, filed a postconviction motion pursuant to § 809.30, Wisconsin Statutes. After a hearing, the motion was denied. That motion did not raise a claim of ineffective assistance of trial counsel. Attorney Schairer filed a notice of appeal from the judgment of conviction and the order denying postconviction relief; he also filed a brief and appendix in the court of appeals on Oimen's behalf. The State filed a responsive brief.
But, unsatisfied, Oimen filed a motion in the court of appeals demanding that Attorney Schairer withdraw because Schairer refused to raise a claim of ineffective assistance of trial counsel. Oimen claimed that Schairer had therefore ineffectively represented him; he requested that new counsel be appointed. In turn, Schairer moved for permission to withdraw. He said Oimen's claim that he had provided ineffective assistance created a conflict of interest between the two because Schairer would be required to be a witness if the issue were litigated, and the rules of ethics prohibit an attorney from simultaneously being a witness and an advocate. Moreover, Schairer said, Oimen's claim constituted a discharge and, for that reason, the rules of ethics required him to withdraw. The court of appeals advised Oimen in writing that he might not be granted new appellate counsel if Schairer were allowed to withdraw and therefore he might be forced to proceed pro se. Oimen was ordered to advise the court whether, knowing that he may be forced to proceed pro se, he still wanted to continue in his motion to have Schairer removed. Oimen assured the court in writing that that is what he wanted. And he got what he asked for. The Wisconsin Court of Appeals granted both his motion to have Schairer withdraw as counsel and Schairer's motion to withdraw. The court referred Oimen's request for successor appellate counsel to the State Public Defender's Office, which in turn said that it would not appoint another lawyer for Oimen. The court of appeals determined that it would not consider the brief Schairer had already filed, and it also declined to appoint successor counsel. Oimen was told that if he wanted to raise a claim of ineffective assistance of trial counsel, he could dismiss his current appeal, pursue his claim...
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