Jimmie Miller v. Judy Smith, 2014 U.S. App. LEXIS 16868

Miller was charged in Wisconsin state court with First Degree Sexual Assault of a Child and pled no contest, receiving 10 years’ imprisonment plus 20 years of supervised release.
Miller sought post-conviction relief claiming his plea was not entered knowingly, voluntarily, or intelligently; the court appointed Grau to represent him.
Grau filed a post-conviction motion in 2007; Miller withdrew it at a hearing, and Grau later advised there was no basis for relief, but did not timely file a no-merit report.
Miller and Grau's communications spanned 2007–2008, with Miller urging discharge of Grau and Grau failing to file a no-merit report as ordered by the court.
The Wisconsin Court of Appeals reinstated Miller’s appeal rights after deeming Grau ineffective and ordered a no-merit report; Miller chose to proceed pro se and did not obtain new counsel.
Miller subsequently filed a federal habeas petition under 28 U.S.C. § 2254; the district court denied relief, and the Seventh Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the reinstatement of appeal rights satisfied by the state court cured prejudice.	Miller argues he needed new appellate counsel after Grau’s ineffectiveness.	Court’s remedy of reinstating rights and ordering a no-merit report was sufficient.	Remedy cured prejudice; no reversible error.
Whether Miller’s discharge of counsel and decision to proceed pro se was a voluntary, knowing waiver of the right to counsel.	Miller claims he had no real choice and did not knowingly waive counsel.	Court properly warned of consequences; Miller voluntarily chose to proceed pro se.	Waiver was voluntary and knowing.
Whether Miller’s guilty-plea challenge is procedurally defaulted and thus not reviewable on habeas.	Grau’s ineffectiveness prevented raising the plea challenge earlier.	Miller abandoned the issue by his conduct and timing; no cause or prejudice established.	Procedural default stood; challenge not reviewable.

Betts v. Litscher, 241 F.3d 594 (7th Cir. 2001) (remedying ineffective counsel may require new appellate counsel)
State ex rel. Seibert v. Macht, 627 N.W.2d 881 (Wis. 2001) (remedies for denial of counsel include reinstating appeal rights)
Speights v. Frank, 361 F.3d 962 (7th Cir. 2004) (defendants do not have right to counsel of choice when indigent and counsel is involved)
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (distinction between right to effective counsel and right to counsel of choice)
Evitts v. Lucey, 469 U.S. 387 (1985) (remedies available for denial of counsel on appeal)