CURTIS J. PIDGEON, Petitioner-Appellee,
JUDY P. SMITH, Warden, Respondent-Appellant
Argued February 25, 2015.
Appeal from the United States District Court for the Western District of Wisconsin. No. 13-cv-57 -- Barbara B. Crabb, Judge.
For Curtis J. Pidgeon, Petitioner - Appellee: Joseph Aragorn Bugni, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI.
For Judy P. Smith, Respondent - Appellant: William L. Gansner, Attorney, Office of The Attorney General, Wisconsin Department of Justice, Madison, WI.
Before BAUER, FLAUM, and MANION, Circuit Judges.
Flaum, Circuit Judge.
Curtis Pidgeon is currently confined in a Wisconsin prison after pleading guilty to a sexual assault charge in Dodge County. He now seeks to withdraw that plea, arguing that he agreed to a plea bargain only because of incorrect--and, he claims, constitutionally ineffective--advice from his attorney. After exhausting his state remedies, Pidgeon filed a petition for a writ of habeas corpus in the Western District of Wisconsin. He claims that the peformance of his trial counsel, Joseph Fischer, was constitutionally ineffective because he incorrectly advised Pidgeon that he would
face a mandatory sentence of life imprisonment without the possibility of parole if convicted in both the Dodge County case and a pending case in Columbia County. Attorney Fischer was under the mistaken impression that Pidgeon had previously been convicted of one " serious felony," as defined by Wisconsin's " persistent repeater" law, Wis. Stat. § 939.62(2m)--an aggravated battery conviction in Dane County--and therefore that convictions in Dodge and Columbia Counties would be his second and third serious felony offenses, resulting in a mandatory life term pursuant to the persistent repeater law. After receiving this advice from counsel, Pidgeon agreed to a plea bargain which required him to serve a prison sentence of ten years, but also required the State to refrain from prosecuting him in the Columbia County case, thereby eliminating the possibility of a mandatory life sentence. In fact, however, this advice was incorrect--the Dane County conviction did not qualify as a serious felony offense, meaning that Pidgeon did not face the possibility of life imprisonment. In his habeas petition, Pidgeon alleges that he would not have accepted the plea agreement had he received correct legal advice.
The district court found that an evidentiary hearing was necessary to determine whether Pidgeon's constitutional right to effective assistance had been violated. Pidgeon testified at this hearing, but his trial counsel did not. The district court found that the trial counsel's performance had been constitutionally ineffective, and granted a writ of habeas corpus allowing Pidgeon to withdraw his plea and instead proceed to trial. Respondent--Pidgeon's custodian Judy Smith--now appeals the grant of the writ, arguing that Pidgeon did not satisfy his burden of proving that his trial counsel had been ineffective because Pidgeon failed to call him as a witness during the evidentiary hearing, as would have been required in an ineffective assistance hearing held in Wisconsin state court. We disagree. There is no requirement that federal courts assessing an ineffective assistance claim follow state evidentiary procedure, and the district court judge did not abuse her discretion by declining to enforce her earlier order which arguably called for the presentation of the trial counsel's testimony at the evidentiary hearing. We affirm the judgment of the district court.
In October 2007, Pidgeon was charged in Dodge County with four counts of second-degree sexual assault of a child and two counts of fourth-degree sexual assault. He eventually agreed to a plea bargain--from which he now seeks to withdraw--in which he pled no contest to one count of second-degree sexual assault of a child; the other counts were dismissed and read in. Pursuant to the terms of that plea bargain, Pidgeon was sentenced to ten years of confinement and ten years of extended supervision. Pidgeon claims that he accepted this plea due to incorrect information provided to him by his trial counsel. It is uncontested that counsel--as well as the prosecutor--told Pidgeon that, if he did not accept the plea bargain, he faced the possibility of life in prison under the Wisconsin persistent offender law. See Wis. Stat. § 939.62(2m). Under that law, a third " serious felony" conviction results in mandatory life imprisonment without the possibility of parole. Id. Pidgeon's counsel apparently thought that (1) Pidgeon's 1991 Dane County aggravated ...