Guest Post: Shelley Fite on 7th Circuit decision that Machner doesn’t apply to IAC claims in federal court

Curtis J. Pidgeon v. Judy P. Smith, Warden, 7th Circuit Court of Appeals No. 14-3158, 5/13/15

In a federal habeas case, the Seventh Circuit has confirmed that the Machner hearing, like New Glarus beer and squeaky cheese curds, is a Wisconsin anomaly. State v. Machner, 92 Wis. 2d 797 (Ct. App. 1979.) Special guest Shelley Fite (SPD alum turned Federal Defender staff attorney) explains what this federal court decision could mean for state court IAC claims.

Curtis Pidgeon pled guilty to sexual assault of a child in exchange for reduced charges and a 20-year sentence. At the time, everyone—including Pidgeon and his lawyer—thought that, without the plea, he’d be subject to a persistent-repeater sentence of mandatory life in prison. But as it turns out, everyone was wrong. When Pidgeon realized that, he sought to withdraw his plea in state court based on ineffective assistance of counsel, but the circuit court deemed the claim unworthy even of a hearing. The Wisconsin Court of Appeals summarily affirmed and the state supreme court denied review.

Enter the feds. The federal district court found that the state court of appeals’ decision in the case was “unreasonable” under the highly deferential habeas standard of review. So it held a hearing on the underlying IAC claim—the hearing Pidgeon never got in state court. Pidgeon testified and then the defense rested. The state, which didn’t dispute that trial counsel misinformed Pidgeon about the persistent-repeater statute, presented no evidence. The district court granted the writ.

On appeal to the Seventh Circuit, the focus was on Machner. The state didn’t defend the state court decision. Instead it argued that Pidgeon should lose because he didn’t present his trial attorney’s testimony at the federal district court hearing. Under Machner, as state practitioners know, a defendant can’t proceed with an IAC claim unless he gets a “Machner hearing” at which he has to present trial counsel’s testimony. The idea is to ferret out whether the lawyer’s bad calls can be explained by strategy, but Machner applies inflexibly—even where there is no conceivable strategic reason for counsel’s decision. (“Did you have a strategic reason for miscalculating the maximum sentence?”)

This isn’t the law everywhere. In most jurisdictions, the defense presents the evidence it thinks it needs to prove its IAC claim—which might include trial counsel’s testimony, or might not. Then the prosecutor can present rebuttal evidence, which could include trial counsel’s testimony. That’s how the federal district court conducted the hearing in Pidgeon’s case and the Seventh Circuit approved. The federal court of appeals said that Wisconsin may impose its own procedural rules but, in the end, “an ineffective assistance claim is a claim under the United States Constitution” and “[n]othing in Strickland or its progeny requires prisoners seeking to prove ineffective assistance to call the challenged counsel as a witness.”

The Seventh Circuit also noted that there was no need for trial counsel’s testimony in the case. Everyone agreed that the trial lawyer misinformed Pidgeon. And the transcripts showed that Pidgeon cared—a lot—about the persistent-repeater statute when he pled. The state contended that maybe, if the trial attorney had testified, he would have said that Pidgeon would have pled no matter what. But if the state thought that was really true, “nothing prevented [it] from calling [trial counsel] as a witness.” In other words, if trial counsel’s testimony would undermine Pidgeon’s claim, why should Pidgeon be responsible for presenting it? Why shouldn’t the state have to present it?

The simple fact that Pidgeon’s IAC claim prevailed doesn’t break new Strickland ground. In fact, just last fall, the Wisconsin Supreme Court decided a case with remarkably similar facts and issued a rare defense victory. State v. Dillard, 358 Wis. 2d 543 (2014). (This may not be coincidental. Judge Crabb’s decision in Pidgeon came out just days before the Dillard oral argument, at least one justice mentioned the case at oral argument, and the Dillard opinion references Pidgeon.)

But the Seventh Circuit has said something that many Wisconsinites may not realize: Machner is a state procedural rule and nothing more. At a minimum, Pidgeon provides a handy citation for arguing against strict application of State v. Lukasik, which held that a defendant who cannot secure trial counsel’s testimony due to, say, “death” or “insanity” cannot prevail on an IAC claim without corroborating evidence regarding the attorney’s decisional process. 115 Wis. 2d 134, 140 (Ct. App. 1983). The Lukasik court said that courts must “presume that counsel had a reasonable basis for his actions, and the defendant cannot by his own words rebut this presumption.” Id.

But Pidgeon proved his claim with nothing but his own words and the court record. Other defendants who can’t comply with Machner’s procedural rule should get the opportunity to do the same.