Court of Appeals asks SCOW to decide how to raise claims that counsel at revocation hearing was ineffective

State ex rel. Antjuan Redmond v. Brian Foster, 2014AP2637, District 2, 4/27/16, certification granted 6/15/16, certification vacated and case returned to the court of appeals 9/15/16; case activity (including briefs)

Issue:

Whether an offender whose parole and extended supervision was revoked after a revocation hearing has an adequate remedy other than a writ of habeas corpus to pursue a claim that the attorney who represented him during the hearing rendered constitutionally ineffective assistance? Specifically, must the offender raise a claim of ineffective assistance of revocation counsel in a motion to the division of hearings and appeals (DHA) in the department of administration?

At a revocation hearing, an offender has “[t]he right to the assistance of counsel,” Wis. Admin. Code § HA 2.05(3)(f), and where there is a statutory right to the assistance of counsel, that “right includes the right to effective counsel,” otherwise the right to counsel would be of little value. State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 253, 548 N.W.2d 45 (1996). So how does an offender raise a claim his or her revocation lawyer provided ineffective assistance?

Well, to challenge the revocation decision itself the offender files a petition for a writ of certiorari, but certiorari is limited to reviewing whether the administrative agency acted within its jurisdiction, acted according to law, or acted arbitrarily, oppressively, or unreasonably, or whether there’s substantial evidence for the revocation decision. In State v. Ramey, 121 Wis. 2d 177, 359 N.W.2d 402 (Ct. App. 1984), the court of appeals cited these very limitations in deciding that certiorari is not the way to raise a claim of ineffective revocation counsel because that a claim isn’t aimed at administrative action. Id. at 178, 182. Instead, Ramey held, offenders bringing an ineffective claim against revocation counsel should petition for a writ of habeas corpus. Id. at 182. (Certification at 6).

Since Ramey “many courts,” state and federal, have held that habeas is the procedure to use for raising ineffective claims against revocation counsel. (Certification at 9 (citing cases)). And Ramey’s reasoning was endorsed by the supreme court in State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 563 N.W.2d 883 (1997), which cited Ramey in holding that habeas was the proper procedure for raising due process violations based on the offender’s incompetency and lack of counsel in a revocation proceeding. Id. at 522.

In accord with this long-standing authority Redmond filed a habeas petition claiming his revocation counsel was ineffective. But the state convinced the circuit court to dismiss his petition by arguing Redmond had another adequate remedy available and so habaeas was not appropriate. (Certification at 3). What is that other adequate remedy, you may ask? Good question! The answer, according to the state, is found in State ex rel. Booker v. Schwarz, 2004 WI App 50, 270 Wis. 2d 745, 678 N.W.2d 361. There was no established procedure for offenders to reopen revocation decisions based on newly discovered evidence, so Booker created one—basically, a motion filed with the Division of Hearings and Appeals (DHA), governed by the same rules (and limited, highly deferential standard of review) applicable to revocation proceedings. (Certification at 6-7). The state argues Ramey and Vanderbeke are “not binding” anymore because ineffective claims can now be brought under the procedure created by Booker. (Certification at 6, 8).

The court of appeals concludes that the state’s argument, despite its glaring defects, creates an issue for certification. First defect: Booker didn’t involve an ineffective claim, but a claim of newly discovered evidence, which, as Redmond’s supplemental brief points out (at 7-8), fits squarely within the scope of certiorari review because it affects whether there’s substantial evidence to support the revocation decision. Further, contrary to the certification (at 10-11), the putative “expertise” of administrative law judges (ALJs) regarding revocation standards doesn’t provide a reason to think they are better equipped than circuit judges to review ineffective claims. Ineffective claims involve questions about the performance of legal counsel that circuit courts routinely consider, in both direct and collateral review proceedings, while ALJs are not now, and never before have been, responsible for addressing such claims.

Second defect: The state can’t even begin to describe how an ineffective claim brought under the Booker procedure will actually work, as is all too evident from the litany of questions the court is forced to ask about the procedure:

Notably, the State identifies no administrative code provisions providing an avenue for challenges to the effectiveness of revocation counsel. If the State’s position that such a challenge could be brought with a motion to reopen revocation before the DHA, procedures to govern such a motion, any hearing and review, whether administrative and/or judicial, would have to be created. For example, what would an offender have to allege in order to be entitled to a hearing? Cf. State v. Toliver, 187 Wis. 2d 346, 360, 523 N.W.2d 113 (Ct. App. 1994). Would there be any temporal limitation on bringing a claim for ineffective assistance of revocation counsel and/or would laches apply? Cf. Wis. Stat. § 974.06(2). If the offender brought a prior Booker motion based on newly discovered evidence, would Escalona-Naranjo/Pozo bar a subsequent Booker motion based on ineffective assistance of revocation counsel? See State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 342-43, 576 N.W.2d 84 (Ct. App. 1998) (applying Escalona-Naranjo to appeals by writ of certiorari from parole and probation revocation hearings). Would the rules of evidence be applicable or would they be relaxed? Cf. Wis. Stat. § 911.01(4)(c); Wis. Admin. Code § HA 2.05(6)(d) (May 2010). How would the matter be reviewed? See Booker, 270 Wis. 2d 745, ¶1. Would there be a layer of administrative review? Sec. HA 2.05(8). If so, would there be judicial review before the circuit court via a writ of certiorari, which would then be subject to our review? See [State ex rel. Johnson v.] Cady, 50 Wis. 2d [540,] 550[, 185 N.W.2d 306 (1971)]. What would be our standard of review and would the standard be different depending on the procedural context in which the claim was resolved? See Booker, 270 Wis. 2d 745, ¶15.

(Certification at 12-13). Perhaps these question show the court can only see the rain-dirty valley where the state sees Brigadoon, but how can this mythical Booker procedure provide an adequate remedy when we don’t even know what it involves?

Given these defects, along with the court’s acknowledgment that it cannot overrule, modify, or withdraw language from Ramey, let alone Vanderbeke (Certification at 8-9), the court should apply the law that’s been in place for 30-plus years and hold that Redmond can bring a habeas to challenge his revocation lawyer’s effectiveness. If there’s a need for a new procedure—a dubious proposition, given all the years things have been sailing along fine under Ramey—the state or the court of appeals should ask the legislature or appropriate administrative agency to fashion it rather than asking the supreme court to legislate from the bench.