Pope v. Kemper

689 F.Supp.3d 657

Robert James POPE, Jr., Petitioner, v. Warden Paul KEMPER, Respondent.

Case No. 21-cv-0346-bhl

United States District Court, E.D. Wisconsin

Signed September 1, 2023

Andrea T. Cornwall, Wisconsin State Public Defender, Milwaukee, WI, for Petitioner.

Daniel J. O'Brien, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, for Respondent.

ORDER GRANTING WRIT OF HABEAS CORPUS

BRETT H. LUDWIG, United States District Judge

There is no question that Petitioner Robert James Pope Jr. has suffered violations of his constitutional rights. Convicted of murder in 1996, Pope instructed his appointed lawyer to pursue an appeal, but counsel abandoned him without filing a "Notice of Intent" form, a required step in Wisconsin's complicated postconviction process. Because the form was not filed, the state public defender never appointed postconviction/appellate counsel for Pope and, left unrepresented, his appellate rights expired. It took two decades, and the announcement of a new state habeas route, but the State of Wisconsin eventually agreed that Pope had been denied effective assistance of counsel and was entitled to have his appeal rights reinstated. Only then did anyone realize that counsel's ineffectiveness 20 years earlier had also resulted in the loss of Pope's trial transcripts. Unable to identify issues for the appeal or the state equivalent of an Anders brief, Pope's appellate counsel successfully moved for a new trial. Faced with having to retry him, the State backpedaled. It appealed the new trial order and convinced both the Wisconsin Court of Appeals and Wisconsin Supreme Court to expand a state procedural rule to deny Pope a new trial, leaving him with a reinstated right to appeal, decades after the events of trial had evaporated from memory, without transcripts to identify and argue alleged errors.

The fundamental question animating this habeas proceeding is whether that remedy—a direct appeal without transcripts—left Pope without a "meaningful appeal" in violation of his Sixth and Fourteenth Amendment rights. The Wisconsin Supreme Court majority never directly addressed this point; it cited none of the United States Supreme Court precedents discussing the requirements of a meaningful appeal. Instead, the majority blamed Pope for failing to secure his own transcripts and extended a state procedural rule to reverse the new trial remedy. Because the Wisconsin Supreme Court's ruling cannot be squared with federal constitutional law, Pope is entitled to the writ. The State must provide him with a new trial or release him.

BACKGROUND

On May 31, 1996, a jury convicted Pope on two counts of first-degree intentional homicide in connection with the murders of Anthony Gustafson and Joshua Viehland. See State v. Pope, 389 Wis.2d 390, 936 N.W.2d 606, 609-10 (2019). On July 2, 1996, Pope was sentenced to life in prison without parole. Id. at 610. Court-appointed attorney Michael Backes represented Pope at trial. Id. at 624 (Bradley, J., dissenting).

Immediately after sentencing, Pope met with Backes to discuss his right to pursue postconviction relief and an appeal. Id. at 610. Both Pope and Backes signed an "SM-33" form, confirming that Backes would file a formal notice of intent to pursue postconviction relief (Notice of Intent). Id. Under Wisconsin law, a Notice of Intent must be filed within 20 days of sentencing. Wis. Stat. § 809.30(2)(b) (2021-22). Backes then absconded without making the promised filing.¹

Backes' faithlessness had serious repercussions for Pope. The filing of a Notice of Intent sets in motion a series of other key steps in the Wisconsin postconviction process. Upon receiving a Notice of Intent, the clerk of court has five days to forward the notice to the state public defender. Wis. Stat. § 809.30(2)(c). The public defender then has 30 days to appoint postconviction counsel for the defendant and order trial transcripts from the court reporter. See Wis. Stat. § 809.30(2)(e). Because Backes failed to file the Notice of Intent, none of this happened. The Wisconsin Public Defender did not receive notice of Pope's desire to pursue postconviction relief, never appointed postconviction counsel for him, and never ordered his transcripts. As a result, Pope's appellate rights expired, and his trial transcripts went unordered.

Unsurprisingly, Backes did not announce to Pope or the state court that he was abandoning his client. For all Pope knew, Backes had filed the Notice of Intent as promised. After a period of silence, however, Pope began to have questions and tried to contact Backes. See Pope, 936 N.W.2d at 624 (Bradley, J., dissenting). He sent at least two letters inquiring about his appeal but did not get a response to either one. Id. Pope and his mother also tried calling Backes, but like the letters, the calls went unanswered and unreturned. Id. After a year of these unrequited efforts, Pope reached out to the state public defender's office for help. Id. He only then learned that no Notice of Intent had ever been filed on his behalf. Id. The public defender agreed to provide him counsel if he could win back his forfeited right to appeal. Id.

Pope had no choice but to set out on his own. His first effort (which appears to have been correct procedurally) was to ask the Wisconsin Court of Appeals for an extension of time to file his Notice of Intent under Wis. Stat. Section 809.82(2)(a). Id. at 610-11. On September 25, 1997, without remanding for factfinding, the court of appeals simply denied Pope's pro se motion on grounds that he had not shown good cause for waiting 15 months (actually only 14) to bring it. Id. at 611. "Even assuming the truth of Pope's representations regarding the performance of trial counsel," the court held, "nothing in [Pope's] motion . . . would warrant a fifteen-month [sic] delay." Id.

Still on his own, Pope tried a different approach. On October 15, 1997, he returned to the circuit court and filed a Wis. Stat. Section 974.06 motion to reinstate his appellate rights. Id. He hoped the court would acknowledge his trial attorney's ineffective performance and grant him a second chance at an appeal. Id. Instead, the circuit court denied the motion, citing the prior court of appeals decision. Id. Pope unsuccessfully appealed this ruling too. Id.² On March 5, 1999, the court of appeals affirmed the circuit court's order. Id. at 612. The Wisconsin Supreme Court denied a subsequent petition for review as untimely, holding that Pope was really seeking review of the 1997 court of appeals' decision rejecting his original request for more time to file the Notice of Intent. Id. Four years later, Pope again filed a pro se motion to extend the time to submit his Notice of Intent. Id. The court of appeals denied the motion and deemed the issue settled. Id.

A decade passed, but in 2014, Pope finally caught a break. In State ex rel. Kyles v. Pollard, 354 Wis.2d 626, 847 N.W.2d 805, 810-14 (2014), the Wisconsin Supreme Court recognized a new procedural path for defendants whose appointed counsel failed to file a Notice of Intent (apparently a recurring problem). The Court held, as a matter of first impression, that an ineffective assistance of counsel claim premised on trial counsel's failure to file a Notice of Intent must be brought in a "Knight petition," for habeas relief filed with the court of appeals. Id. at 814. Less than a month after Pollard, Pope filed his own Knight petition. (ECF No. 8 at 3.) He argued that Backes was ineffective for failing to file the Notice of Intent. See Pope, 936 N.W.2d at 612. This time, the court of appeals remanded the case to the circuit court for factfinding. Id. After taking evidence, the circuit court found that (1) Pope had twice written Backes seeking information about his "appeal and transcripts" within the 20-day window for filing his Notice of Intent; (2) despite these efforts, Backes never filed Pope's Notice of Intent; and (3) Pope had "been acting pro-se attempting to reinstate his appellate rights since 1996." (ECF No. 7-4 at 81-83.) On August 16, 2016, based on these findings, Pope and the State filed a joint stipulation to reinstate his direct appeal rights. (Id. at 84-86.) The stipulation provided that the parties agreed to "reinstatement of Mr. Pope's direct appeal deadlines under Wis. Stat. § 809.30, and for an order extending the deadline for filing a notice of intent to pursue postconviction relief to 20 days following issuance of the court's order, with concomitant dismissal of the petition for writ of habeas corpus as moot." (Id. at 85.) This stipulation effectively reversed the outcome of Pope's first request to the Wisconsin Court of Appeals in 1997.

On October 4, 2016, over 20 years after his conviction, Pope timely filed a Notice of Intent. See Pope, 936 N.W.2d at 613. He and his appointed appellate counsel then encountered a new obstacle. Wisconsin law requires court reporters to maintain trial notes for only 10 years. Because Backes did not file Pope's original Notice of Intent, the state public defender never had any reason to contact the court reporter to obtain Pope's trial transcripts within this 10-year period, and the reporter no longer had any notes from which transcripts could be produced. Id. Pope's counsel searched in vain for an alternative, even communicating with Backes, but 20 years on, no one involved with Pope's trial had any recollection of it. Id. at 626 (Bradley, J., dissenting). Accordingly, counsel had nothing to review and no ability to identify any potential trial errors to raise on appeal. Id.

Out of options, counsel filed a Wis. Stat. § 809.30 motion for a new trial, arguing that the lack of trial transcripts for his reinstated appeal denied Pope his constitutional and statutory right to a meaningful appeal. Id. at 613. The State opposed the motion. Id. The circuit court sided with Pope, finding that "without even a portion of the trial transcript, it would be...