849 N.W.2d 724
Wis.2014Background
- Tramell Starks was convicted of first-degree reckless homicide (lesser included) and felon-in-possession; trial counsel was Michael Steinle.
- Postconviction appellate counsel (Robert Kagen) did not file § 974.02 postconviction motions and instead pursued a direct appeal; the court of appeals affirmed and the Wisconsin Supreme Court denied review.
- About three years after trial Starks, pro se, filed a § 974.06 motion in circuit court alleging ineffective assistance of postconviction counsel for failing to raise trial-ineffectiveness claims; the circuit court denied the motion on the merits.
- On review the Wisconsin Supreme Court (State v. Starks) evaluated whether the claims against Kagen were properly brought and whether appellate counsel was ineffective, but included language suggesting the claim belonged in the court of appeals as a habeas petition challenging appellate counsel.
- Both Starks and the State moved for reconsideration asking the court to correct/revise parts of the opinion (forum guidance and certain statutory interpretations); the motions were denied but concurring opinions urged clarification of Starks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper forum for claims challenging appellate vs. postconviction counsel | Starks: his § 974.06 motion challenged postconviction counsel and was properly filed in circuit court | State: court language confused appellate vs. postconviction counsel; forum rules from Knight/Rothering govern | Court denied reconsideration but concurrences say withdraw language implying Starks filed in wrong forum; reaffirm Knight/Rothering principles that the forum depends on where alleged ineffectiveness occurred |
| Meaning of § 974.06 timing language ("expired" vs "exhausted") | Starks: paragraph 41’s language suggested § 974.06 is available only after remedies are exhausted | State: paragraph 41 relied on outdated Peterson language and needs clarification due to 1977 amendment | Court clarified that "expired" (time limit lapsed) differs from "exhausted" (remedies tried); § 974.06 becomes available when initial remedies are unavailable |
| Standard to evaluate ineffective-assistance-of-counsel claims based on failure to raise issues | Starks: postconviction counsel ineffective for not raising trial-ineffectiveness claims | Kagen/Starks (prior counsel): he raised other claims on appeal; court must compare strengths | Court applied "clearly stronger" test (importing Gray v. Greer language): Starks’s proposed issues were not clearly stronger than those Kagen raised; no relief warranted |
| Whether Starks entitled to rehearing or Machner hearing on claimed counsel failures | Starks: alleged procedural errors and overlooked standards justify reconsideration and further factfinding | State: no basis for new hearing; circuit court already addressed claims on merits | Court denied reconsideration; concurrences urged clarifying language but concluded no possibility Starks obtains an evidentiary hearing or new trial |
Key Cases Cited
- State v. Starks, 349 Wis. 2d 274 (Wis. 2013) (opinion under reconsideration; addresses forum and ineffective-assistance analysis)
- State v. Knight, 168 Wis. 2d 509 (Wis. 1992) (claims of ineffective assistance of appellate counsel should be brought by petition for writ of habeas corpus to the appellate court)
- State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675 (Ct. App. 1996) (if underlying claim is ineffective assistance of trial counsel through postconviction counsel’s failures, relief lies in circuit court)
- State v. Balliette, 336 Wis. 2d 358 (Wis. 2011) (clarifies when § 974.06 and habeas remedies in circuit court are appropriate for postconviction counsel failures)
- Peterson v. State, 54 Wis. 2d 370 (Wis. 1972) (older language on exhaustion of direct remedies; Court noted amendment changed related statutory phrasing)
- Gray v. Greer, 800 F.2d 644 (7th Cir. 1986) ("clearly stronger" standard for claims appellate counsel failed to raise)