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Avila v. Richardson

United States Court of Appeals, Seventh Circuit

May 7, 2014

WILLIAM L. AVILA, Petitioner-Appellant,
v.
REED A. RICHARDSON, Respondent-Appellee

Argued April 18, 2014.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 12-C-228 -- William E. Callahan, Jr., Magistrate Judge.

For WILLIAM L. AVILA, Petitioner - Appellant: Robert J. Palmer, Attorney, MAY, OBERFELL & LORBER, Mishawaka, IN.

For REED A. RICHARDSON, Respondent - Appellee: William L. Gansner, Attorney, OFFICE OF THE ATTORNEY GENERAL, Wisconsin Department of Justice, Madison, WI.

Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

OPINION

Hamilton, Circuit Judge .

The Antiterrorism and Effective Death Penalty Act of 1996 amended 28 U.S.C. § 2254(d) to narrow the power of federal courts to grant habeas corpus relief to state prisoners. Under that Act, the critical question on the merits of most habeas corpus petitions shifted from whether the petitioner was in custody in violation of the Constitution, laws, or treaties of the United States to a much narrower question: whether the decision of the state court keeping the petitioner in custody was " contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable

Page 535

determination of the facts ... ." 28 U.S.C. § 2254(d). This appeal from the denial of habeas corpus relief presents a relatively rare case, one in which the state court affirmed the petitioner's conviction by applying a rule of law directly contrary to controlling precedent of the Supreme Court of the United States. We reverse the denial of relief and remand for further proceedings in the district court, including an evidentiary hearing on the petitioner's claim.

Petitioner William Avila pleaded guilty in Wisconsin state court to one count of repeated sexual assault of a child, as well as one count of producing child pornography and sixteen counts of possessing it. See Wis. Stat. § § 948.025, 948.05, 948.12. He was sentenced to a total of 35 years in prison. The case is now before us on Avila's petition for a writ of habeas corpus. Among many other claims, he attacks the voluntariness of his guilty plea on the ground that his attorney told him he would receive just five years if he pleaded guilty. The Wisconsin Court of Appeals concluded that by pleading guilty, Avila had waived any challenge to his counsel's performance. The state court's reasoning was flatly contrary to Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which held that a criminal defendant can challenge his guilty plea if the plea itself was the result of ineffective assistance of counsel. Because there has been no opportunity for factual development of the issue, all we can say about the merits of Avila's claim at this point is that he is entitled to make it.

The few facts before us can be summarized briefly. Avila was accused of sexually assaulting an eight-year-old boy. He told police that he had abused the boy more than twenty times, including one instance when Avila had drugged and raped him. A search of Avila's computer revealed more than a thousand images of child pornography along with a sexually explicit video of his victim. Avila was charged with sexually assaulting the child, producing child pornography (which Wisconsin terms sexual exploitation of a child), and 48 counts of possessing child pornography, of which 32 were dismissed in exchange for his guilty plea. At sentencing, the state recommended 60 years in prison, the presentence report recommended 31 to 38 years, and Avila's attorney asked for eight years. The judge imposed consecutive sentences of 20 years for sexual assault, ten years for sexual exploitation, and five years for each of the possession charges, the last of these to be served concurrently with one another. In addition, Avila was sentenced to 20 years of extended supervision after his release.

Avila's appellate counsel identified only frivolous grounds for appeal and so submitted a no-merit report to the Wisconsin Court of Appeals. See Wis. Stat. § 809.32; McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988) (up-holding procedure). Avila responded with a long list of arguments. The only one relevant here is his claim that he received ineffective assistance of counsel when his attorney told him that if he pleaded guilty, he would receive just five years of imprisonment and ten years of supervision. Avila said he was never informed of the true severity of the sentence he faced and he would have refused to plead guilty on those terms.

The state appellate court adopted the reasoning of the no-merit report and rejected the claims Avila raised in his response. In the passage critical to this appeal, the court rejected Avila's argument that he received ineffective assistance in connection with the plea agreement: " Avila's claims ...


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