As regular readers of this blog — yeah, both you — probably realize, my pet peave about habeas law is that there are so many unnecessary, arcane procedural requirements. Yes, I understand that things are different after the regular criminal process has played itself out, and it should be harder for a defendant to overturn a conviction than to avoid a conviction in the first place. But we can accomplish that simply by placing all evidentiary burdens on the defendant. I’m even open to the idea that the defendant should in all cases be required to make a substantial showing of actual innocence in order to win a new trial. But why layer on one additional procedural requirement after another? These requirements just spawn more layers of collateral litigation that lead reviewing courts further and further away from the questions of substantive justice that ought to be the focus.
The Supreme Court of Wisconsin may have added to the procedural complexity and uncertainty of Wisconsin postconviction law with its decision last week in State v. Balliette, 2011 WI 79. It’s a bit hard to say what the significance of the decision is, but the court’s emphasis on the pleading requirements that must be satisfied before a § 974.06 movant can get an evidentiary hearing does not bode well.
Here is the relevant language:
¶62 Balliette’s § 974.06 motion came after his § 974.02 motion and direct appeal. The claims raised in his § 974.06 motion certainly could have been raised in his initial motion and direct appeal. Thus, under our decisions in Escalona-Naranjo and Lo, Balliette was required to provide “a sufficient reason as to why an issue which could have been raised on direct appeal was not.” Rothering, 205 Wis. 2d at 682. That reason is the alleged ineffectiveness of postconviction counsel.
¶63 However, for Balliette to obtain an evidentiary hearing based on this reason, he was required to do more than assert that his postconviction counsel was ineffective for failing to challenge on direct appeal several acts and omissions of trial counsel that he alleges constituted ineffective assistance. He was required to do more than assert that postconviction counsel “failed to challenge [these aspects of Attorney Musolf's] conduct.” Because the viability of Balliette’s § 974.06 motion was entirely dependent upon his showing that postconviction counsel was constitutionally ineffective, he was required to allege that Attorney Hunt’s “performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687.
. . .
¶65 Balliette’s October 31, 2008, motion identifies “several acts and omissions” of trial counsel that he believes constitute ineffective assistance and should have been raised by postconviction counsel. But this is, at best, only part of what is required in a § 974.06 motion. Balliette was required to assert why it was deficient performance for postconviction counsel not to raise these issues. . . .
. . .
¶67 . . . To successfully plead ineffective assistance of postconviction counsel against this background, Balliette’s 2008 § 974.06 motion needed to do more than point to issues that postconviction counsel did not raise. He needed to show that failing to raise those issues fell below an objective standard of reasonableness. . . . His legal attack would have required facts, presented in a “five ‘w’s’ and one ‘h’” format.
¶68 Balliette also needed to show how he intended to establish deficient performance if he was given the chance at an evidentiary hearing. The evidentiary hearing is not a fishing expedition to discover ineffective assistance; it is a forum to prove ineffective assistance. Both the court and the State are entitled to know what is expected to happen at the hearing, and what the defendant intends to prove.
¶69 Balliette’s motion does not assert that the issues that Attorney Hunt failed to raise are obvious and very strong, and that the failure to raise them cannot be explained or justified. Neither does his motion allege facts that would support his ultimate objective. The motion does not set forth what Balliette intended to prove at an evidentiary hearing, if one were granted.
It’s not clear to me what exactly was lacking in Balliette’s pleading of deficient performance by postconviction counsel. He identified, apparently with some specificity, errors of trial counsel, and then asserted postconviction counsel was ineffective for failing to raise the errors of trial counsel. His claim has a res ipsa loquitur quality. Which of the key letters (the five w’s and one h) cannot be readily inferred from Balliette’s motion? And why require postconviction movants, many of whom will be pro se, to state the obvious in their pleadings? This seems a return to old-style civil pleading, which elevated form over substance.
The one aspect of an ineffective assistance of counsel claim that seems missing from Balliette’s motion is an explanation of why postconviction counsel did not litigate all of the trial-counsel issues. But how is Balliette supposed to do that before there is an evidentiary hearing at which postconviction counsel testifies? I suppose he could rely on the loyalty and cooperation of his postconviction counsel and, for instance, send him a letter asking for a full account of his strategy. But that is certainly not going to work well for every defendant. In this regard, I find it troubling that the court stated, “Both the court and the State are entitled to know what is expected to happen at the hearing, . . .” This may raise an unfair barrier for many movants.
On the other hand, the court also stated, “Balliette’s motion does not assert that the issues that Attorney Hunt failed to raise are obvious and very strong, and that the failure to raise them cannot be explained or justified.” Would Balliette have been okay if he had just pled these things in conclusory terms? If it’s a res ipsa-type claim, that should be enough. I’m not sure where the court is, though.
I think the dissent hit the nail on the head:
¶84 I part ways with the majority because, in determining that Balliette’s motion was insufficient, it appears to set up a series of uncertain pleading requirements that could ensnare pro se petitioners and experienced appellate attorneys alike. It further fails to appreciate the role that an evidentiary hearing plays in evaluating whether an attorney’s performance was deficient.