seventh circuit decision, denying habeas relief in 641 N.E.2d 371 (Ill. 1994) and 521 N.E.2d 38 (1988)
Habeas Review – 6th Amendment Attachment of Counsel – State Court Findings
The Seventh Circuit rejects, on habeas review of his Illinois conviciton, Thompkins’ challenge to admissibility of his statement. Thompkins made his statement after his arrest and, according to the state court, before his initial bond hearing. Under controlling law, Kirby v. Illinois, 406 U.S. 682, 689 (1972), the right to counsel under the 6th amendment attaches on initiation of adversary criminal proceedings; nor is there any dispute that an appearance before a judicial officer to be advised of the charges satisfies this test, Rothgery v. Gillespie County, Tex., 554 U.S. 191, 198-99 (2008) – Thompkins argues, therefore, his interrogation violated his 6th amendment right to counsel, which had attached by virtue of his bond-hearing appearance. Deferential review of state court findings dooms the claim:
In evidentiary conflicts like this, our standard of review requires that we defer to the state supreme court’s decision. The state court was entitled to accept Perry’s testimony about the chronology of events. Thompkins has not rebutted the AEDPA presumption that the state court’s fact-finding is correct; he has simply pointed to evidence supporting his version of the sequence and timing of events. Nor has he carried his burden of demonstrating that the state court’s determination of the facts was unreasonable; identifying conflicting evidence is not enough. Accordingly, the district court properly denied habeas relief on the Sixth Amendment right-to-counsel claim.
The Wisconsin practitioner may be mildly surprised to see “that in Illinois it is the preliminary hearing itself, not the filing of a complaint for preliminary examination, that initiates adversary judicial proceedings in felony cases” – surprised, that is, because in Wisconsin the 6th amendment right to counsel is triggered by filing of a complaint, among other things, e.g., State v. Forbush, 2011 WI 25, ¶16. Not all complaints, then, are created equal. In any event, the court explicitly limits its discussion to waiver of 6th amendment right to counsel, fn. 3 (suppressibilty under 5th amendment “is not within the scope of our certificate of appealability”), and at the same time doesn’t get into the details of Thompkins’ 6th amendment argument, in particular the impact of Montejo v. Louisiana, 556 U.S. 778 (2009), which equates 5th- and 6th-amendment waivers of counsel (or arguably so, at the very least; see the Forbush post for further discussion of the point).
The court also applies the familiar cause-and-prejudice analysis to a separate, procedurally defaulted ineffective assistance claim. Thompkins failed to submit required affidavits in support of his state-court postconviction motion that counsel filed to investigate an alibi – he filed neither affidavits from the missing witnesses nor an affidavit of his own explaining why the former wasn’t possible. Nor as a result could he show prejudice: “A Strickland claim based on counsel’s failure to investigate a potential witness requires a specific, affirmative showing of what the missing witness’s testimony would be, and this typically requires at least an affidavit from the overlooked witness. … Thompkins’s own affidavit is not enough.” As to a preserved claim of failure to investigate a witness: “Her affidavit makes it clear that she could not provide a clean alibi. … When considered through the lens of our doubly deferential standard of review, Barbara’s affidavit does not come close to establishing that the state supreme court unreasonably applied Strickland.”
It is important to note that, although the Illinois courts apparently require non-hearsay affidavits in cases such as this, and although some on the Court of Appeals occasionally attempt to impose such a requirement here in Wisconsin, that is not the law here.
Although adequate allegations must be contained in the motion and supporting documentation, they need not be contained in non-hearsay affidavits. In State v. Brown, 2006 WI 100, 293 Wis.2d 594, 716 N.W.2d 906, for instance, the supreme court unanimously stated: “A defendant is not required to submit a sworn affidavit to the court, but he is required to plead in his motion that he did not know or understand some aspect of his plea that is related to a deficiency in the plea colloquy.” Id., ¶ 62.
See also State v. Howell, 296 Wis.2d 380, 722 N.W.2d 567, 2006 WI App 182, ¶ 45, n.14 (expressly rejecting state’s argument that hearsay allegations in counsel’s affidavit are insufficient to require evidentiary hearing on post-conviction motion), rev’d on other grounds, 301 Wis.2d 350, 734 N.W.2d 48, 2007 WI 75 (holding that allegations of motion (including counsel’s hearsay allegations) were adequate to require evidentiary hearing); State v. Basley, 298 Wis.2d 232, 726 N.W.2d 671, 2006 WI App 253, ¶10, n.5 (“As we noted in Howell, the lack of an affidavit from Basley setting forth his assertions as averments does not render Basley’s motion infirm.”); State v. Hampton, 259 Wis.2d 455, 655 N.W.2d 131 (Ct. App. 2002) (reversing and remanding for hearing on post-conviction motion despite dissents comment that necessary factual allegations were contained only in counsel’s hearsay affidavit).