In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2894
ROBERT J. POPE,
Petitioner-Appellee,
v.
JE’LESLIE TAYLOR, Interim Warden, Racine Correctional Insti-
tution,
Respondent-Appellant.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 21-cv-0346-bhl — Brett H. Ludwig, Judge.
____________________
ARGUED APRIL 9, 2024 — DECIDED MAY 6, 2024
____________________
Before EASTERBROOK, ROVNER, and JACKSON-AKIWUMI,
Circuit Judges.
EASTERBROOK, Circuit Judge. In 1996 Robert Pope was con-
victed of murder and sentenced to life imprisonment. He
filled out a form directing his lawyer to seek post-conviction
relief. (Wisconsin combines a direct appeal with collateral re-
view. See Wis. Stat. §974.02; Page v. Frank, 343 F.3d 901, 905–
06 (7th Cir. 2003).) But his lawyer, Michael J. Backes,
2 No. 23-2894
abandoned him and did not take any of the steps necessary to
protect Pope’s rights. Backes has been reprimanded for aban-
doning at least four other criminal defendants yet remains in
good standing at Wisconsin’s bar.
After nothing happened for about 14 months, Pope sought
aid from Wisconsin’s public defender, who replied that Pope
first needed an extension from the court of appeals—which
turned him down on the ground that he had waited too long.
See State v. Pope, 2019 WI 106 ¶11 (Dec. 17, 2019) (recounting
the 1997 decision). The court of appeals found that Pope had
forfeited his appellate rights by not doing himself what the
lawyer was supposed to do for him. Pope then asked the trial
court for relief; it said no, given the appellate decision. “Since
1997 Pope has made multiple abempts to reinstate his appeal
rights.” Id. at ¶12. All were unsuccessful until 2016, when the
state acknowledged that Pope is entitled to an appeal and the
circuit court entered an order to that effect.
The new-appeal order did not do Pope any good, how-
ever, because Wisconsin requires court reporters to keep their
notes for only ten years. Wis. S. Ct. R. 72.01(47). Backes failed
to order a trial transcript in 1996, and the state’s judiciary re-
jected Pope’s request for one in 1997. (Technically, Pope filed
a “statement on transcript”, which the court of appeals treated
as a request for a transcript at public expense. That request
was denied. Pope then did not order a transcript on his own
account, as he lacked the funds.) The notes were destroyed. In
2017 a state judge held that, given the absence of the transcript
that Pope’s current lawyers say they need to formulate a claim
of error, and the inability to reconstruct a transcript (a finding
that the state does not contest in this court), Pope is entitled
to a new trial. That decision was reversed by the court of
No. 23-2894 3
appeals, and the Supreme Court of Wisconsin affirmed the
appellate decision.
The court held that, as a maber of Wisconsin law, a new
trial based on the absence of a transcript is appropriate only if
the defendant first makes a “facially valid claim of arguably
prejudicial error” that requires a transcript to substantiate.
2019 WI 106 ¶23 (underlining in original). Pope cannot do
so—he isn’t a lawyer and scarcely remembers the events of
1996. The court wrote that Pope has only himself to blame,
because he did not order a transcript during the ten years after
his trial. Id. at ¶¶ 44–45. In laying the onus on Pope, the court
disregarded its own recognition that he had tried to get his
appeal under way in 1996, that his lawyer had not taken the
necessary steps, that Pope sought to get things moving in
1997, and that the state’s judiciary then denied his request for
a transcript at public expense. In other words, the Supreme
Court of Wisconsin held it against Pope that he had not per-
sonally undertaken steps that he had delegated to counsel—
and then ignored the fact that, when Pope did seek a tran-
script, the state judiciary turned him down.
Having exhausted all avenues of relief in state court, Pope
filed a petition for collateral review under 28 U.S.C. §2254.
The district court issued a conditional writ and directed the
state to release Pope unless within six months it set a retrial in
motion. 2023 U.S. Dist. LEXIS 155652 (E.D. Wis. Sept. 1, 2023).
The state filed an appeal, which led the district judge to defer
that deadline. 2024 U.S. Dist. LEXIS 32043 (E.D. Wis. Feb. 26,
2024).
It is now almost 28 years since Pope was sentenced to life
in prison, and he has yet to enjoy an appeal. He has suffered
at least two violations of his constitutional rights: the right to
4 No. 23-2894
assistance of counsel, see Roe v. Flores-Ortega, 528 U.S. 470
(2000) (failure to pursue an appeal requested by a client is
treated as ineffective assistance without the need to show
prejudice), and the right to an appeal equivalent to that avail-
able to well-heeled litigants, see Griffin v. Illinois, 351 U.S. 12
(1956). (A solvent litigant could have purchased a transcript
in 1997.) When a state violates a criminal defendant’s consti-
tutional rights, it must set aside the conviction unless it finds,
beyond a reasonable doubt, that the violation was harmless.
See Chapman v. California, 386 U.S. 18 (1967). Yet Wisconsin’s
judiciary has never found that the errors were harmless be-
yond a reasonable doubt. Instead it has placed multiple bur-
dens on Pope—a burden to take over the tasks that his faith-
less lawyer should have performed and a burden to show ar-
guable issues that a transcript might illuminate. That is a long
way from the approach required by Chapman.
Both judicial and executive branches of Wisconsin have as-
sumed that the appeal offered to Pope in 2016 is a complete
remedy for the constitutional violations. The state’s Supreme
Court treated all ensuing issues as mabers of state law. Thus
it surrendered the benefit of deference under 28 U.S.C.
§2254(d).
In this court, the state’s Aborney General has argued that
an independent and adequate state ground (the need to show
a “facially valid claim of arguably prejudicial error”) blocks
federal collateral review. That ground is independent but not
adequate. The problem is easy to see. Wisconsin insists that
offering a criminal defendant an appeal, 20 years late, without
a transcript, is a constitutionally adequate substitute for a
timely appeal with a lawyer and a transcript. To state the po-
sition is to show the fallacy. No sane person would accept one
No. 23-2894 5
in lieu of the other. Wisconsin might as well have told Pope
that he was welcome to an appeal, but only if he submibed his
brief in Punic.
Carter v. Buesgen, 10 F.4th 715 (7th Cir. 2021), holds that a
four-year delay in resolving a criminal defendant’s appeal
makes state procedures “ineffective to protect the rights of the
applicant” (28 U.S.C. §2254(b)(1)(B)(ii)) and authorizes a fed-
eral court to resolve an application for collateral review. Our
decision in Carter expressed incredulity at Wisconsin’s de-
fense of a four-year delay in gebing an initial appeal on track
for resolution. 10 F.4th at 723–24. What words, then, suffice
for a 28-year delay? Almost eight years have passed since
Pope’s right to an appeal was reinstated, but that entitlement
has been illusory.
Wisconsin’s treatment of Pope is a travesty of justice.
In September 2023 the district court gave Wisconsin six
months to vacate Pope’s conviction and begin the process of
retrial. That time has passed. The state does not get another
six months from our decision. It should have been preparing
for a trial to follow on the heels of our decision—if a fair trial
is possible so long after the events of 1995. (Indeed, prosecu-
tors should have begun preparing in 2017, when the state’s
circuit court held that Pope is entitled to another trial.) Pope
must be released on bail unless that trial begins within two
months—and, if the trial has not started in three months, the
conviction must be vacated and Pope released uncondition-
ally. The district court’s decision is modified to include these
deadlines and, as so modified, is
AFFIRMED.