State v. Balliette

ANN WALSH BRADLEY, J.

¶ 81. {dissenting). Proceeding pro se, Balliette filed a 16-page motion setting forth detailed facts in support of his motion alleging that his trial counsel was constitutionally ineffective. He likewise alleged that his postconviction counsel was ineffective for failing to challenge these aspects of trial counsel's performance.

¶ 82. It is essential to keep in mind that this case is not about whether Balliette's motion is sufficient to entitle him to a new trial. No one asserts that it is. Rather, the question is whether Balliette's motion is sufficient to entitle him to an evidentiary hearing, where he would have the opportunity to show that his trial and postconviction attorneys rendered ineffective assistance of counsel.

¶ 83. I agree with the majority that a defendant filing a postconviction motion must demonstrate with some particularity that he is entitled to relief. I also agree that ineffective assistance of postconviction counsel can constitute a "sufficient reason" for overcoming the Escalona-Naranjo bar to successive postconviction motions.1 See State v. Love, 2005 WI 116, ¶ 31 n.11, *391284 Wis. 2d 111, 700 N.W.2d 62; Rothering v. McCaughtry, 205 Wis. 2d 675, 678, 556 N.W.2d 136 (Ct. App. 1996).

¶ 84. I part ways with the majority because, in determining that Balliette's motion was insufficient, it appears to set up a series of uncertain pleading requirements that could ensnare pro se petitioners and experienced appellate attorneys alike. It further fails to appreciate the role that an evidentiary hearing plays in evaluating whether an attorney's performance was deficient.

¶ 85. Like the court of appeals, I conclude that Balliette has alleged facts sufficient to entitle him to an evidentiary hearing on his claims of trial counsel and postconviction counsel ineffectiveness. Accordingly, I respectfully dissent.

I

¶ 86. The majority acknowledges that the Strickland test applies to both claims of ineffective assistance of counsel.2 Majority op., ¶ 28. It does not appear to take issue with the sufficiency of the facts Balliette set forth regarding trial counsel's performance. See id., ¶ 15. Rather, it contends that Balliette's motion "focused attention on the wrong counsel" and failed to "carefully address the two elements of ineffective assistance of counsel set out in Strickland[.]" Id., ¶ 3.

¶ 87. Balliette identified several acts and omissions which he asserts constitute deficient performance of trial counsel, and he asserted that his postconviction counsel was ineffective for failing to raise these issues. Nevertheless, the majority contends that "this is, at best, only part of what is required[.]" Id., ¶ 65.

*392¶ 88. Under the majority's analysis, however, it is unclear what, precisely, is required. At times, the insufficiency appears to be a failure to properly format his motion. The majority contends: "His legal attack would have required facts, presented in a 'five 'w's' and one 'h' format." Id., ¶ 67.

¶ 89. At other times, it appears that the insufficiency might be failure to utter heretofore unknown magic words. For example, the majority says that "Balliette's motion does not assert that the issues that [postconviction counsel] failed to raise are obvious and very strong[.]" Id., ¶ 69.

¶ 90. At yet other times, the insufficiency appears to be substantive. The majority contends that Balliette was required to "show that failing to raise those issues fell below an objective standard of reasonableness" and "overcome the presumption that, under the circumstances, the challenged action might be considered sound strategy." Id., ¶ 67.

¶ 91. It is unclear under the majority's analysis what, precisely, would be enough to "show" within the four corners of a motion that counsel's performance fell below an objective standard of reasonableness. Is it enough for Balliette to assert that he did not discuss the lack of expert testimony with his postconviction attorney and that Balliette believes that postconviction counsel overlooked it? Or, can a defendant simply make allegations about what he thinks his attorney will say at an evidentiary hearing? Is it enough for the defendant to assert that the attorney had no reasonable strategic reason for failing to make a claim?

¶ 92. The uncertain pleading requirements set by the majority are bound to baffle the bench and bar, not to mention pro se defendants, who are the typical drafters of postconviction motions. I would not set so uncertain a bar.

*393II

¶ 93. To the extent that the majority's new pleading requirements are substantive and require movants to identify the reasons underlying counsel's acts and omissions, see id., ¶ 68, the majority fails to appreciate the role an evidentiary hearing plays in the evaluation of an ineffective assistance of counsel claim. As the majority explains, "an act or omission that is unprofessional in one case may be sound or even brilliant in another." Id., ¶ 24. The determination of whether the attorney's performance was deficient requires the court to "focus on counsel's perspective at the time of trial" or postconviction. State v. Foy, 206 Wis. 2d 629, 640, 557 N.W.2d 494 (Ct. App. 1996).

¶ 94. A defendant is typically not privy to the strategic decisions made by counsel. Accordingly, when a defendant makes a colorable claim for ineffective assistance of counsel, the circuit court should hold a Machner hearing.3 The purpose of a Machner hearing is for the circuit court to gauge whether counsel's alleged deficiency was the result of strategy or oversight.

¶ 95. This determination often cannot be made without the testimony of counsel. Without counsel's testimony, a court cannot "focus on counsel's perspective" and "cannot otherwise determine whether. .. counsel's actions were the result of incompetence or deliberate trial strategies." Foy, 206 Wis. 2d at 640; State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

¶ 96. As the majority acknowledges, "[a]n evidentiary hearing is nothing more than an intermediate step toward[s]" Balliette's objective, a new trial. Majority op., *394¶ 61. "If the motion contained all the proof necessary to show that he was entitled to a new trial, he would not need an evidentiary hearing." Id. Hopefully, the majority opinion will not be read to contend that a defendant must supply all of the facts necessary to prevail in obtaining a new trial as a prerequisite to obtaining an evidentiary hearing.4

¶ 97. Such a standard would render a Machner hearing an inconsequential formality. Further, it would *395be inconsistent with Wis. Stat. § 974.06, which provides: "Unless the motion and the files and records of the action conclusively show that the person is entitled to no relief, the court shall: ... (c) Grant a prompt hearing." Finally, such a standard is untenable because it may bar meritorious claims whenever the defendant is unable to secure the cooperation of trial or postconviction counsel.

Ill

¶ 98. When I examine Balliette's 16-page motion, I conclude that he set forth sufficient facts to entitle him to an evidentiary hearing. Among other claims, Balliette asserts that his trial counsel was ineffective for failing to present the testimony of an accident reconstruction expert, and that his postconviction counsel was ineffective for failing to challenge that omission on direct appeal.

¶ 99. The following facts and legal arguments are derived from the motion. At trial, Balliette testified that the accident resulted not from his intoxication or lack of care, but rather, from Thein's operation of her own vehicle. He testified that Them slowed down and pulled over toward the right side of the road. As Balliette was about to pass Them, she abruptly braked and turned left in front of his truck. Balliette testified that he slammed on the brakes but was unable to stop his truck before impact.5

¶ 100. Relying in part on the assumption that Thein's car did not have anti-lock brakes, an accident *396reconstruction expert testifying for the State opined that Balliette's version of the accident was "not possible," that it "can't physically happen," and it could not be reconciled with "the laws of physics." The expert testified: "[Balliette's version is] not possible on any day of the week or any year. It can't physically happen. We have to have the laws of physics. They don't change."

¶ 101. Balliette's trial counsel hired an expert, but he rested the defense without presenting any expert testimony. As a result, the jury was left to determine which of two versions of events was more credible — the unsupported testimony of the defendant, who was intoxicated at the time of the accident and clearly had a personal interest in the outcome of the trial, or the testimony of the State's reconstruction expert, who said that the defendant's version of events was "not possible on any day of the week or any year." Not surprisingly, the jury appears to have believed the State's expert.

¶ 102. After his conviction, Balliette hired his own accident reconstruction expert, who uncovered evidence undermining the expert opinion offered by the State. Among other revelations, Balliette's expert determined that Thein's car did in fact have anti-lock brakes.

¶ 103. In his motion for postconviction relief, Balliette asserted: "The fact that [Thein's car] had anti-lock brakes discredits the trial testimony of [the State's experts], which had impeached Balliette's testimony regarding Thein's actions moments before the collision, and renders their accident reconstructions flawed."

¶ 104. Balliette further asserted that his trial attorney's failure to present an accident reconstruction expert was deficient performance. He contended that his trial attorney "knew months before trial that he could not rely on the State's witnesses to present Balliette's theory of defense, and that without present*397ing [his] own accident reconstruction expert, Balliette would be left to rely solely on his own testimony to support his defense."

¶ 105. Balliette contended that had his trial attorney presented the testimony of an accident reconstruction expert, that testimony "would have given the jury a facts-based reconstruction of the events prior to the collision that would have countered the explanation given by the State." He asserted that this alternative testimony "would have given the jury the means to form a reasonable doubt as to Balliette's guilt." Accordingly, had trial counsel presented the testimony of an accident reconstruction expert, the jury would not have been presented with uncontroverted expert testimony that Balliette's version of events was contrary to "the laws of physics."

¶ 106. Because no Machner hearing was conducted regarding the claims that Balliette now raises, I do not know why Balliette's attorney declined to present the testimony of a reconstruction expert. Neither does the majority. It might be that the trial attorney made a reasonable strategic choice, or it may be that Balliette's trial attorney was asleep at the switch. Likewise, without the benefit of a Machner hearing regarding these claims, no member of this court knows why Balliette's postconviction attorney failed to raise the trial attorney's failure to present an accident reconstruction expert.

¶ 107. If the facts asserted in Balliette's motion are true, however, it is difficult to imagine that his trial attorney had a sound strategic reason for failing to counter the State's accident reconstruction expert. Rather, it is more likely that his trial attorney failed to conduct a reasonable investigation and uncover the flaw in the expert opinion offered by the State-that it was based on the erroneous conclusion that Them's car did not have anti-lock brakes.

*398¶ 108. It is likewise difficult to have confidence that the jury would have reached the same verdict if the flaws in the expert opinion offered by the State had been exposed. If the facts asserted in Balliette's motion are true, a court may conclude that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984).

¶ 109. Finally, if the facts Balliette asserts are true, then it is difficult to imagine that his postconviction counsel made a sound strategic decision to forego this claim of ineffective assistance of counsel on appeal. Like the court of appeals, I conclude without reservation that Balliette's 16-page motion is sufficient to overcome the Escalona-Naranjo bar and entitle him to a Machner hearing where his claims can be tested. Accordingly, I respectfully dissent.

¶ 110. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.

Strickland v. Washington, 466 U.S. 668 (1984).

State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

To the, extent that the majority relies on federal habeas cases as authority for its new pleading requirements, I conclude that the majority errs.

The majority cites Murray v. Carrier, 477 U.S. 478 (1986) and Smith v. Murray, 477 U.S. 527 (1986). Majority op., ¶¶ 65-66. These cases address the cause and prejudice standards for procedural default, a central principle of seeking a writ of habeas corpus in a federal court. Before seeking federal habeas relief, a defendant must exhaust all state remedies. Wainwright v. Sykes, 433 U.S. 72 (1977). Federal courts will often decline to hear habeas challenges if the issue was not "resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure." Id. at 87.

The procedural default standard is based in part on concerns for finality, a concern shared by state courts. However, as importantly, the procedural default standard is based on "the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Murray v. Carrier, 477 U.S. at 487. "The principle of comity that underlies the exhaustion doctrine would be ill served by a rule that allowed a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation!)]" Id. at 489.

Borrowing from federal habeas standards to establish procedural rules for state claims would undermine a key rationale underlying the federal cause and prejudice standard — that constitutional questions arising out of state criminal proceedings should be resolved, when possible, in state courts.

Wisconsin Stat. § 940.09(2) (a) provides that a defendant has an absolute defense to homicide by intoxicated use if the jury determines by the preponderance of the evidence that the death would have occurred even if the defendant had been exercising due care and not under the influence of an intoxicant. Wis. Stat. § 940.09(2)(a).