In order to prepare for an upcoming talk on the past term in the Wisconsin Supreme Court, I just read State v. Allen, 2010 WI 89 (2010), a new case elaborating on State v. Escalona-Naranjo, 185 Wis. 2d 168 (1994). I teach E-N in my post-conviction remedies class, and I’ve never found its reasoning persuasive. The E-N court held that a direct appeal raises a procedural bar to any subsequent attempt to gain post-conviction relief based on issues that could have been, but were not, litigated in the direct appeal. It seems to me that the court gave too much weight to the state’s interest in avoiding a second round of post-conviction litigation, particularly in light of the woeful underfunding of indigent defense in Wisconsin and the real possibility that important constitutional issues might be missed in the first round. Moreover, despite the court’s desire to reduce the volume of post-conviction litigation, the E-N procedural bar has actually spawned considerable collateral litigation over the questions of what could have been raised on direct appeal and what constitutes good cause to excuse a procedural default. Rather than expending so much energy on the resolution of unnecessary procedural questions, I would much rather see the courts reaching the merits of the underlying constitutional claims.
In any event, Allen, the new case, nicely illustrates the sorts of puzzles the courts have to grapple with under E-N.
On direct appeal, Allen’s court-appointed lawyer filed a no-merit report. The court of appeals agreed with his bleak assessment of the case and affirmed the conviction. Seven years later, Allen sought post-conviction relief under Wis. Stat. § 974.06, presenting issues that (let us stipulate) could have been raised, but were not, on direct appeal.
For purposes of the procedural bar, should a no-merit proceeding be regarded as the equivalent of any other appeal (in which case Allen would be precluded from litigating his new claims), or should it be regarded as a non-event (in which case Allen would be free to proceed)? Well, a no-merit proceeding is really neither fish nor fowl. To be sure, it has some of the external attributes of a regular appeal, but it is hard to ignore the fact that the normal adversarial process has broken down, and the defendant’s own lawyer is now arguing against him. Moreover, if the E-N rule really is about avoiding the costs of two full-blown rounds of post-conviction litigation, the first round in cases like Allen seems somewhat short of full-blown.
Given the nature of the conundrum, it should not be surprising that the majority in Allen came up with a messy middle-ground solution. The no-merit appeal does trigger the E-N bar, but only if the court of appeals properly followed the no-merit process. Making the latter finding, in turn, seems to require at least a quick peak at the underlying merits — if the court missed an issue of obvious merit, then it will have failed to comply with the required process. So it seems that Allen adds yet another layer of complexity to the litigation of a procedural bar that was invented to simplify post-conviction process.