Page v. Frank

• Decision Date: 11 September 2003
• Docket Number: No. 02-2622.,02-2622.
• Parties: Emmanuel PAGE, Petitioner-Appellant, v. Matthew J. FRANK, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

343 F.3d 901

Emmanuel PAGE, Petitioner-Appellant, v. Matthew J. FRANK, Respondent-Appellee.

No. 02-2622.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 2003.

Decided September 11, 2003.

Hutson B. Smelley (argued), Mayer, Brown, Rowe & Maw, Houston, TX, for Petitioner-Appellant.

Warren D. Weinstein (argued), James E. Doyle, Office of the Attorney General, Wisconsin Dept. of Justice, Madison, WI, for Respondent-Appellee.

Before RIPPLE, KANNE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Emmanuel Page appeals the denial of his petition for a writ of habeas corpus. See 28 U.S.C. § 2254. The district court held that the last decision rendered on the merits by the state courts, the Court of Appeals of Wisconsin's decision of May 19, 1999, was based on an independent and adequate state procedural ground and therefore barred collateral review in the federal courts. Because we are in respectful disagreement with that determination, we must reverse the judgment of the district court and remand the case for further proceedings.

I BACKGROUND

A. Facts

In 1994, Mr. Page was convicted in the Circuit Court for Milwaukee County, Wisconsin, on two counts of intentional homicide and one count of attempted armed robbery. These charges were based on the deaths of Felix Rodriguez and Daniel Valentin. In the state trial court, Mr. Page was represented by Attorney Andrew Mishlove. Only one witness to the crime, John Guirau, testified in the State's case. Guirau stated that, on August 8, 1996, he was in his apartment with some friends, including the two decedents. An old friend of Guirau, Caprice Summers, appeared at the door and informed the occupants that he had a friend outside who was interested in selling an AK-47 assault rifle. Valentin indicated an interest in the weapon; Guirau therefore invited Summers and his three friends, including Mr. Page, into the apartment. According to Guirau, at some point during the ensuing negotiations over the weapon's price, Mr. Page pulled a gun, pointed it at Guirau's head and announced a robbery. Summers and Rodriguez then began struggling for control of the AK-47. Guirau testified that Mr. Page fired at him but missed. Guirau also believed that he heard the AK-47 fire during the struggle. He heard five shots fired, but he did not see Mr. Page shoot anyone.

At trial, the most incriminating evidence that Mr. Page was the shooter was his alleged confession in the handwriting of Detective Sliwinski, one of the two officers who had questioned Mr. Page at the police station. The document provided two places for the suspect to sign, one indicating that the individual agreed to waive Miranda rights and to provide a statement and the other affirming the accuracy of the statement. Mr. Page had signed neither, and the document provided no explanation for this omission. Mr. Page testified at trial that he had invoked his Miranda rights but that the officers nevertheless had continued to question him and to ask him to sign a number of statements; he had refused to do so. Detective Sliwinski testified that Mr. Page had agreed to make a statement, had agreed to its accuracy, but nevertheless had refused to sign the form.

Mr. Page filed a one-page motion to suppress the alleged confession on the ground that the statement had been procured through a violation of Mr. Page's Miranda rights; however, at the suppression hearing, counsel neither briefed the issue nor invited the court's attention to any relevant case law. The trial court determined that, as a matter of law, the statement's lack of signatures went to credibility and not admissibility. The trial court then denied the motion to suppress the statement without addressing the Miranda issue. During the suppression hearing, Mr. Mishlove neither submitted any documentary evidence nor called any witnesses other than Mr. Page. Mr. Page eventually was convicted on all counts and sentenced to two consecutive life sentences. At that stage, Mr. Mishlove withdrew from the case. He was replaced by new counsel, Robert Kagen.

Following Mr. Page's conviction, Attorney Kagen filed a postconviction motion in the state trial court. See Wis. Stat. § 974.02. This petition presented only one issue: whether certain jury instructions regarding lesser included offenses should have been given. Mr. Kagen did not challenge the effectiveness of trial counsel or the admission of the alleged confession. The trial court denied the postconviction motion.

Attorney Kagen then filed a no-merit brief in the Court of Appeals of Wisconsin. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel's no-merit brief presented three issues; Mr. Page filed a pro se response that raised two additional issues. None of these issues addressed the allegedly improper confession, the Miranda violation, or the effectiveness of trial counsel. On July 30, 1996, the Court of Appeals of Wisconsin granted the Anders motion, permitted counsel to withdraw and affirmed the trial court's decision after reviewing the record and finding no issues of arguable merit.

Mr. Page, proceeding pro se, then filed a second postconviction motion in the Wisconsin trial court; this motion was filed under Wisconsin Statute § 974.06. The motion asserted several constitutional claims, including ineffective assistance of postconviction counsel for failing to raise the Miranda violation, a confrontation clause claim, and an ineffective assistance of trial counsel claim. The state trial court denied the motion; it stated that the issues presented had no merit and further reasoned that, as a consequence, neither of Mr. Page's attorneys had been deficient in failing to raise them. The state trial court also denied the motion on the ground of procedural waiver because the issues had not been raised in the no-merit briefs on direct appeal. The state trial court further concluded that Mr. Page could not overcome the waiver because he had not shown good cause for failing to raise these issues on the direct appeal.

Mr. Page, continuing to act pro se, then filed in the Court of Appeals of Wisconsin an appeal of the trial court's denial of his § 974.06 motion. The Court of Appeals of Wisconsin affirmed the trial court's order on May 19, 1999. It stated that Mr. Page was procedurally barred by the Supreme Court of Wisconsin's ruling in State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994). The court then divided its analysis of Mr. Page's claims into those waived and those denied on the merits. The court determined that Mr. Page had waived his confrontation clause claim, his Miranda claim, and his ineffective assistance of trial counsel claim because he failed to raise these issues in his response to the no-merit brief on direct appeal. The court provided a merits-based rationale for denying Mr. Page's ineffective assistance of postconviction/appellate counsel claim by holding that the underlying issues previously had been decided to be meritless and therefore need not be reviewed again.

B. District Court Proceedings

Mr. Page next filed a pro se petition seeking a writ of habeas corpus in the United State District Court for the Eastern District of Wisconsin. He raised several constitutional issues, including ineffective assistance of trial counsel. Specifically, he argued that his postconviction/appellate counsel was ineffective in presenting these constitutional challenges before the Wisconsin courts. See R.1 at 7-8. The district court denied the petition. The court took the view that the ineffective assistance of postconviction/appellate counsel claims had been procedurally defaulted and that federal review therefore was barred.

On September 17, 2002, a judge of this court issued a certificate of appealability certifying three issues:

1. Whether the state post-conviction appeals court's decision that petitioner waived his ineffective assistance of counsel claims rested on an adequate and independent state procedural ground or whether the decision relied on the merits such that the federal claims were preserved for review. See Moore v. Bryant, 295 F.3d 771 (7th Cir.2002).

2. Whether the state post-conviction appeals court's decision that petitioner waived his ineffective assistance of counsel claims by not raising them in response to appellate counsel's "no-merit report" pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), was adequate and independent. Cf. Wilkinson v. Cowan, 231 F.3d 346 [sic 347] (7th Cir.2000).

3. Whether petitioner's various attorneys rendered ineffective assistance of counsel in violation of the United States Constitution with respect to petitioner's Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), claims.

Appellant's App. at 32.

II DISCUSSION

A federal court entertaining a petition for a writ of habeas corpus will not review a question of federal law if it determines that the state decision rests on a state procedural ground that is independent of the federal question and adequate to support the judgment. See Moore v. Bryant, 295 F.3d 771, 774 (7th Cir.2002); Braun v. Powell, 227 F.3d 908, 912 (7th Cir.2000). Simply stated, the independent and adequate state ground doctrine bars "`federal habeas when a state court [has] declined to address a prisoner's federal claims because the prisoner [has] failed to meet a state procedural requirement.'" Moore, 295 F.3d at 774 (quoting Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). In assessing whether a state court ruling is based on an "independent and adequate" determination of state law, the federal court must refer to the decision of the last state court to have ruled on the merits. See Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir.2002); Brooks v. Walls, 279 F.3d 518, 522 (7th Cir.2002). In this case, the last ruling on the merits by a Wisconsin state court is the May 19, 1999, decision...