We have a new development to report. Recall that in 2015, Federal Defender Shelley Fite wrote an excellent guest post about a 7th Circuit decision, Pidgeon v. Smith, 785 F.3d 1165 (2015). The 7th Circuit held that Machner‘s requirement–that a defendant claiming ineffective assistance of counsel must present his lawyer’s testimony at an evidentiary hearing–is just a Wisconsin rule. “[A]n 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.”
Two years later, Justice Sotomayor (joined by Kagan and Ginsburg) dissented from the denial of cert in Reeves v. Alabama, 138 S. Ct. 22 (2017). Reeves argued that requiring trial counsel’s testimony for an ineffective assistance claim is contrary to Strickland v. Washington. Alabama did not deny this point. Instead, it contended that the Alabama state court had not actually applied a per se rule in Reeves’ case. See our post here, which highlighted a split on this issue. We said that the 11th Circuit, Wisconsin, Texas, and Alabama appear to require trial counsel’s testimony to prove ineffective assistance of counsel. Five federal circuits do not.
The latest development also stems from Reeves. After SCOTUS denied cert, Reeves filed a federal habeas petition alleging ineffective assistance of counsel. The Eleventh Circuit read the Alabama state court decision as imposing a per se bar to relief because Reeves failed to present the testimony of his trial lawyer. The 11th Circuit held this an unreasonable application of Strickland.
Alabama petitioned for cert. In July 2021, SCOTUS issued a per curiam opinion reversing (and chastising) the 11th Circuit for misreading the Alabama state court decision–it had not applied a per se rule. Breyer dissented without explanation. Sotomayor filed a dissenting opinion, which Kagan joined. According to Sotomayor:
The sole question presented in this case is whether the Court of Criminal Appeals of Alabama applied a categorical rule that Reeves’ failure to call his attorneys to testify was fatal to his IAC claim as a matter of law. No one disputes that such a rule would be an “unreasonable application” of Strickland and its progeny. 28 U. S. C. §2254(d)(1); see also ante, at 1, 10; Pet. for Cert. 1. Under those decisions, no single type of evidence, such as counsel’s testimony, is a prerequisite to relief.3 See Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000) (describing Strickland’s “circumstance-specific reasonableness inquiry”); Williams v. Taylor, 529 U. S. 362, 391 (2000) (explaining that “the Strickland test ‘of necessity requires a case-by-case examination of the evidence’”).
It’s pretty clear there is a split over this issue, and Wisconsin is in the minority. SCOTUS may well grant review in the right case–where the state court clearly bars an ineffective assistance claim based on a defendant’s failure to call his lawyer to testify. Should SCOW overturn Machner? Is there a Wisconsin lawyer brave enough to take this issue all the way up?
<<>> All the way up to where? The WSC? The USSC? First, a lawyer would have to have a case where the issue is ripe. Second, the WSC or USSC would have to grant review or certiorari. I’m sure there are plenty of private bar lawyers who could take this on.
My greatest professional regret, as Appellate Division Director for the SPD and chair of the Wisconsin Judicial Council, is not taking on Chief Justice Abrahamson’s request to propose a better analytical framework for IAC claims than that required by Machner.
Throw in Walker v Pollard’s analysis [18-C-147, 9/4/19, Adelman, J] that “clearly stronger” may be an unreasonable application of Strickland. And the number of times the ED and WD have told Wisconsin appellate courts that either facts or law were unreasonably determined or applied… There’s a lot to complaint about…