DeAnthony A. NASH, Petitioner-Appellant,
Randall HEPP, Respondent-Appellee.
Argued June 13, 2013.
Robert J. Palmer, Attorney, May, Oberfell & Lorber, Mishawaka, IN, for Petitioner-Appellant.
Warren D. Weinstein, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.
Before MANION, SYKES, and TINDER, Circuit Judges.
SYKES, Circuit Judge.
DeAnthony Nash, a Wisconsin prisoner, contends that his trial lawyer was ineffective in advising him to plead no contest to a sexual-assault charge and then failing to file a notice of intent to seek postconviction relief as required by state postconviction procedure. The district court denied federal habeas corpus relief, reasoning that Nash procedurally defaulted his claim. Nash did not appeal. He later sought relief from the judgment via two motions under Rule 60(b)(6) of the Federal Rules of Civil Procedure, both of which the court denied. Nash appeals the denial of the second of these motions, arguing that he demonstrated " extraordinary circumstances" warranting relief under Rule 60(b)(6) based on several recent Supreme Court decisions that expand the circumstances under which procedural default may be excused. See Trevino v. Thaler,
__ U.S. __, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013); Martinez v. Ryan,
__ U.S. __, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012); Maples v. Thomas,
__ U.S. __, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012).
We affirm. The recent changes in the law of procedural default do not give Nash grounds for relief under Rule 60(b)(6). Moreover, the state circuit court specifically advised Nash how he could correct his counsel's procedural error and reinstate his postconviction and appeal rights, but he did not take advantage of the opportunity to do so.
Nash pleaded no contest in Wisconsin state court to sexual assault of a child and received a sentence of three years in prison and five years of extended supervision. On the day of sentencing, he and his attorney signed and filed a standard form stating that Nash wanted to seek postconviction relief and acknowledging that his attorney was required to file within 20 days a notice of intent to pursue postconviction relief. See WIS. STAT. §§ 809.30(2), 973.18(5). Under Wisconsin postconviction procedure, filing this form allows a defendant to challenge trial counsel's performance with new appointed counsel before a direct appeal is taken. State v. Evans, 273 Wis.2d 192, 682 N.W.2d 784, 793-94 (2004).
When Nash had not heard from his attorney or the court for several months, he filed a pro se motion for postconviction relief. The circuit court denied the motion, noting that Nash's attorney had neglected to file the required notice of intent but also informing Nash of the procedure for reinstating his postconviction and appeal rights, which allows a prisoner in this situation to start the counseled postconviction process over again. See WIS. STAT. § 809.82(2)(a); State v. Walker, 292 Wis.2d 326, 716 N.W.2d 498, 504-06 (2006). Instead of following this procedure, Nash appealed the denial of his pro se motion. On appeal he argued for the first time that trial counsel was ineffective for advising him to plead no contest and for failing to file the notice of intent to pursue postconviction relief. The court of appeals declined to appoint counsel for Nash because he had neither filed the notice of intent nor sought reinstatement of his postconviction and appeal rights. The court affirmed the denial of Nash's pro se motion for postconviction relief, explaining that Nash had waived his claim of ineffective assistance of counsel by failing to raise it in the circuit court and rejecting his other claims on the merits. The Wisconsin Supreme Court denied his petition for review.
Nash next petitioned the federal district court for a writ of habeas corpus under 28 U.S.C. § 2254, raising, as relevant here, his claim that trial counsel was ineffective. He alleged that counsel incompetently advised him to plead guilty without investigating allegedly inconsistent statements by the victim and also failed to file the notice of intent to pursue postconviction relief. The district court denied Nash's petition, concluding that he had procedurally defaulted his ineffective-assistance claim by failing to present it to the state trial court.
Nash did not appeal, but nine months later he moved for relief from judgment under Rule 60(b), maintaining that his trial counsel's failure to file the notice of intent excused his procedural default. The district court denied relief. Nash appealed, but we denied his request for a certificate of appealability. Nash v. Husz, No. 10-2265 (7th Cir. Oct. 18, 2010). More than a year later, the Supreme Court decided Maples v. Thomas, concluding that ineffective assistance of state postconviction counsel can excuse procedural default if counsel caused the default by abandoning the petitioner without notice.
__ U.S. ...