discussing requirements of Wis. Stat. § 808.10 and instructing federal courts to “respect a state court’s finding of waiver or procedural default under its own laws”
How later courts described this case
- discussing requirements of Wis. Stat. § 808.10 and instructing federal courts to “respect a state court’s finding of waiver or procedural default under its own laws”
- appellate counsel's failure to seek discretionary review by the state supreme court of petitioner's conviction cannot constitute "cause" for the procedural default
- “there is no right to competent counsel in a discretionary appeal such as [petitioners] appeal to the state supreme court. The constitutional right to counsel is guaranteed to a defendant both for trial and for the first appeal as of right. That appellate-level right to counsel also comprehends the right to effective assistance of counsel. However, there is no constitutional right to counsel to pursue discretionary state appeals. The Supreme Court has stated summarily: ‘Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his retained counsel’s failure to file the application [for review to the state supreme court] timely.’ Thus [petitioners] cannot claim a constitutional deprivation of effective representation.”
- "The `cause and prejudice' test is conjunctive: A petitioner's inability to demonstrate either prong results in dismissal of his habeas petition before the merits of his claims can be reached."
Written by the judges who cited it.
The opinion
RIPPLE, Circuit Judge,
concurring.
I join the judgment of the court. Like my brothers, I believe that the procedural default issue here is governed by the “cause and prejudice” test of Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977). See Johnson v. United States, 838 F.2d 201, 206-07 (Ripple, J., concurring). Counsel’s error here was the kind of “simple inexcusable neglect” that the court has held does not constitute “cause.” See Nutall v. Greer, 764 F.2d 462, 464 (7th Cir.1985). On this basis, I *430 join the court in holding that the district court was obliged to dismiss the petition for habeas corpus.