Appeal from the United States District Court for the Eastern District of Wisconsin.
No. 95-C-941 Myron L. Gordon, Judge.
Before FLAUM, EASTERBROOK, and EVANS, Circuit Judges.
EASTERBROOK, Circuit Judge.
DECIDED FEBRUARY 14, 1997
In 1976 the Supreme Court of Wisconsin held that under Wis. Stat. sec. 974.06(4) criminal defendants may present on collateral attack any constitutional contentions they omitted from direct appeal -- no matter why these claims were omitted. Bergenbthal v. State, 72 Wis. 2d 740, 242 N.W.2d 199 (1976). Eighteen years later, on June 22, 1994, that court over-ruled Bergenthal, concluding that it had misread this statute. State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). Today in Wisconsin a prisoner needs a "sufficient reason to raise [in a collateral attack] a constitutional issue . . . that could have been raised on direct appeal". 517 N.W.2d at 164 (emphasis in original). State courts apply the holding of Escalona-Naranjo to prisoners whose direct appeals were filed before Bergenthal was overruled.
Jon Liegakos, whose conviction for murder was affirmed in 1987, is such a person. Wisconsin's judiciary dismissed his collateral attack, because he declined to give any reason for omitting from his direct appeal the arguments he raised in the collateral proceeding. Confined under a sentence of life imprisonment, Liegakos now wants a federal writ of habeas corpus. The district court denied his petition for a combination of procedural and substantive reasons. 928 F. Supp. 799 (1996).
Liegakos's principal argument is that the application of Escalona-Naranjo to a case in which the direct appeals preceded June 22, 1994, violates the due process clause of the fourteenth amendment, and that he is therefore entitled to an adjudication in Wisconsin's courts (which use doctrines more favorable to prisoners than those in sec. 2254 litigation) as if Bergenthal remained the law. Anything less, he contends, allows a state to set a trap for unwary litigants.
After Marks v. United States, 430 U.S. 188 (1977), and Bouie v. Columbia, 378 U.S. 347 (1964), the due process clause places judges under the same basic constraint as the ex post facto clause does for legislatures: new rules that increase the punishment for crime, or make additional acts criminal, cannot be applied to conduct predating the change. It does not follow, however, that all procedural changes fall under this ban. See California Department of Corrections v. Morales, 115 S. Ct. 1597 (1995); Collins v. Youngblood, 497 U.S. 37 (1990).
Alterations in procedures, including the law of collateral attack, are frequent. For example, in 1977 the Supreme Court of the United States held that prisoners who want to present arguments that have been procedurally defaulted -- such as those omitted from the briefs on direct appeal, Murray v. Carrier, 477 U.S. 478 (1986) -- may raise them on collateral attack only if they can establish cause and prejudice. Wainwright v. Sykes, 433 U.S. 72 (1977). This departure from the former law, which permitted a prisoner to raise all contentions that had not been deliberately bypassed, see Fay v. Noia, 372 U.S. 391 (1963), was applied to Sykes himself, and to all later petitioners no matter when their convictions occurred. Liegakos's position implies that the Supreme Court violated the due process clause, for the effect of Sykes was more substantial than that of Escalona-Naranjo. (The "sufficient reason" standard is more generous to prisoners than the cause-and-prejudice standard.)
Changes in the law of collateral attack constitutionally may be applied to persons who were convicted while greater opportunities for collateral review existed. Felker v. Turpin, 116 S. Ct. 2333, 2340 (1996); Lindh v. Murphy, 96 F.3d 856, 867-68, 871-74 (7th Cir. 1996) (en banc), cert. granted on a different issue, 117 S. Ct. 726 (1997); United States v. Burnom, 27 F.3d 283 (7th Cir. 1994). Liegakos would have a stronger argument if he had relied on Bergenthal in 1987 when deciding which issues to present. But he does not say that he did -- and we presume that reliance on the former state of the law would be a "sufficient reason" to make the claim belatedly. Cf. Burris v. Parke, 95 F.3d 465 (7th Cir. 1996) (en banc). Having declined to advance any reason why the claims he now presents were withheld in 1987, Liegakos cannot successfully maintain that the state must entertain a collateral attack. Application of Wis. Stat. sec. 974.06(4), as Escalona-Naranjo understands it, to persons convicted before June 22, 1994, does not violate the Constitution; a state may curtail or even abolish collateral review as it pleases.
At this point Wisconsin drops the other shoe: failure to present the arguments on appeal in 1987 is a procedural default, which forecloses review under sec. 2254 in the absence of cause and prejudice. Lack of a "sufficient reason" for the omission necessarily means a lack of "cause," the state contends. Maybe so -- but the framework of Sykes applies only if the defendant forfeited the claim under a rule that supplies an independent and adequate ground of decision. Whether the ground is independent depends on state law, see Hogan v. McBride, 74 F.3d 144 (7th Cir. 1996); whether it is adequate depends on federal law.
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457 (1958), holds that a rule of procedure is not adequate to prevent federal collateral review when the defendant could not be "deemed to have been apprised of its existence" at the time he omitted the procedural step in question. See also Barr v. Columbia, 378 U.S. 146, 149 (1964) (state procedural rules "not strictly or regularly followed" do not bar review). James v. Kentucky, 466 U.S. 341, 348-51 (1984), generalized these holdings when concluding that only a "firmly established and regularly followed state practice" prevents federal review. What this means in practice is that the state rule of practice must have been in place, and enforced, "by the time as of which it is to be applied." Ford v. Georgia, 498 U.S. 411, 424 (1991). See also Trevino v. Texas, 503 U.S. 562, 566-68 (1992); Del Vecchio v. Illinois Department of Corrections, 31 F.3d 1363, 1380-81 (7th Cir. 1994) (en banc). Ford holds that a rule of state procedure adopted by the state's highest court two years after the defendant's trial was not an adequate ground. The Supreme Court did not require Ford to show that he relied on the old rules; all that mattered was what the announced rules were on the date of the act or omission said to work the forfeiture. The inquiry is objective, which greatly simplifies the task of application. Escalona-Naranjo overrules a case that defined the state's law of forfeiture at the time Liegakos took his direct appeal. Whether or not Liegakos relied on Bergenthal in 1987, he could have presented his constitutional claims to the state courts between 1988 and 1993. Under the holdings of Ford and its cousins (including our opinion in Del Vecchio), the doctrine of Escalona-Naranjo is not an "adequate" state ground for appeals briefed before its announcement.
What is more, for all but one of Liegakos's arguments (the one he presented on appeal in 1987), the 1996 amendment to sec. 2254(d) does not apply: it affects only a "claim that was adjudicated on the merits in State court proceedings". Although the state's trial court rejected on the merits the arguments Liegakos presented for the first time on collateral attack, the court of appeals relied entirely on Escalona-Naranjo, and the disposition of the last state court to issue an opinion determines whether the state has invoked a ground of forfeiture. Ylst v. Nunnemaker, 501 U.S. 797 (1991); Prihoda v. McCaughtry, 910 F.2d 1379 (7th Cir. 1990). Wisconsin may be surprised that more restrictive standards for collateral attacks in state court (Escalona-Naranjo) and more restrictive standards in federal court (Title I of the Antiterrorism and Effective Death Penalty Act of 1996, discussed in Felker and Lindh) cancel each other out: we must review Liegakos's claim as if nothing had changed since 1987. ...