McElvaney v. Pollard
735 F.3d 528
7th Cir.2013Background
- McElvaney was Wisconsin state-convicted of first-degree sexual assault of a minor after a charge with a broad time window (Sept. 26, 2001–Dec. 19, 2001).
- Trial counsel moved to require greater particularity of the time of the alleged offense and to preclude trial modification of the period; the court limited modification but allowed narrowing within the charged window.
- Appeals court affirmed conviction; postconviction relief regarding trial counsel’s handling of the time-range issue was denied; no alibi defense was shown.
- Wisconsin Court of Appeals later applied Maloney’s two-part Strickland standard and found McElvaney failed to show deficient performance or prejudice.
- McElvaney pursued federal habeas relief under 28 U.S.C. § 2254, arguing ineffective assistance of both trial and appellate counsel for not challenging the charging period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the state court’s denial of IAC was unreasonable under Strickland | McElvaney argues trial/appellate counsel unreasonably failed on the time-range issue. | Wisconsin court’s decision applied Strickland reasonably; no prejudice shown. | Not unreasonable; deference upheld. |
| Whether lack of date-range specificity violated Strickland prejudice | Specificity prevented defense preparation (alibi). | Alibi not demonstrated; no prejudice shown. | Not prejudicial under Strickland; reasonable probability not shown. |
| Whether appellate counsel was ineffective for not raising trial counsel’s deficiencies | Appellate counsel should have challenged trial counsel on the time-range issue. | No deficient performance shown; alibi defense speculative. | Not deficient; appellate counsel's performance reasonable. |
| Whether the Wisconsin Court of Appeals applied a correct Strickland framework under AEDPA | Court of Appeals misapplied Strickland’s prejudice standard. | Court of Appeals properly applied Maloney and Strickland. | Not contrary to or unreasonable application of Strickland. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (Supreme Court, 1984) (standard for ineffective assistance of counsel)
- Harrington v. Richter, 131 S. Ct. 770 (S. Ct. 2011) (doubly deferential AEDPA review)
- Woolley v. Rednour, 702 F.3d 411 (7th Cir. 2012) (deferential review in habeas corpus)
- Mosley v. Atchison, 689 F.3d 838 (7th Cir. 2012) (exacting AEDPA standard of review)
- Cullen v. Pinholster, 131 S. Ct. 1388 (S. Ct. 2011) (limits merits-review to state court record under AEDPA)
- State v. Maloney, 281 Wis.2d 595 (Wis. 2005) (two-part performance-and-prejudice framework for IAC)
- State v. Fawcett, 426 N.W.2d 91 (Wis. Ct. App. 1988) (alibi defense and charging specificity considerations)