Reply Brief — Robert James Pope, Jr., Petitioner v. Wisconsin

No. 19-7939

____________________________________________________________

IN THE

Supreme Court of the United States

______________________________

ROBERT JAMES POPE, JR.

Petitioner,

v.

WISCONSIN,

Respondent.

______________________________

On Petition for a Writ of Certiorari

to the Supreme Court of Wisconsin

______________________________

REPLY BRIEF FOR PETITIONER

______________________________

ANDREA TAYLOR CORNWALL

Assistant State Public Defender

Counsel of Record

WISCONSIN STATE

PUBLIC DEFENDER

735 N. Water Street, Suite 912

Milwaukee, WI 53202-4116

(414) 227-4805

cornwalla@opd.wi.gov

___________________________________________________________

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................... ii

I.

Respondent’s opposition to the Petition is meritless,

as it fails to address the Fifth and Sixth

Amendment violations resulting from the decision

below, which holds Petitioner responsible for the

effect of counsel’s ineffectiveness in failing to timely

initiate his appeal, in contravention to this Court’s

determinations. .....................................................................1

CONCLUSION ......................................................................................... 8

i

TABLE OF AUTHORITIES

Page

CASES

Anders v. California,

386 U.S. 738 (1967) .............................................................................. 6

Coleman v. Thompson,

501 U.S. 722 (1991) ............................................................................... 4

Cruz v. Beto,

405 U.S. 319 (1972) ............................................................................... 7

Douglas v. California,

372 U.S. 353 (1963) ............................................................................... 1

Evitts v. Lucey,

469 U.S. 387 (1985) ............................................................................... 1

Garza v. Idaho,

139 S. Ct. 738 (2019) ..................................................................... 1, 4, 5

Herrera v. Collins,

506 U.S. 390 (1993) .............................................................................. 3

Jones v. Barnes,

463 U.S. 745 (1983) ............................................................................... 4

Penson v. Ohio,

488 U.S. 75 (1988) ............................................................................. 1, 6

Rodriquez v. United States,

395 U.S. 327 (1969) ........................................................................... 1, 5

Roe v. Flores-Ortega,

528 U.S. 470 (2000) ................................................................... 1, 5, 6, 7

Turney v. Safley,

482 U.S. 78 (1987) ................................................................................. 7

United States v. Cronic,

466 U.S. 658 (1984) .............................................................................. 6

ii

CONSTITUTION, STATUTES, and RULES

U.S. CONST. amend. V ......................................................................... 1, 2

U.S. CONST. amend. VI .................................................................... 1, 2, 4

Wisconsin Supreme Court Rule 72.01(47) .................................................3

iii

REPLY BRIEF FOR PETITIONER

I.

Respondent’s opposition to the Petition is meritless, as it

fails to address the Fifth and Sixth Amendment

violations resulting from the decision below, which holds

Petitioner responsible for the effect of counsel’s

ineffectiveness in failing to timely initiate his appeal, in

contravention to this Court’s determinations.

1. The brief in opposition provides no legitimate basis for denial

of review. Indeed, Respondent’s brief fails to address the federal

constitutional issue raised in Petitioner’s Question Presented, which

focuses on the Wisconsin Supreme Court’s sweeping determination

that a defendant abandoned by counsel’s “inexcusable” failure to

initiate his appeal will be deemed to have forfeited it, along with his

right to the effective assistance of counsel, by failing to pursue the

appeal pro se. (Pet. i; Pet-App. A at 129-130).

Contrary to Respondent’s claim (Opp. at 5-6), the majority

decision of the Wisconsin Supreme Court conflicts with this Court’s

precedent, including Garza v. Idaho, 139 S. Ct. 738 (2019), Roe v.

Flores-Ortega, 528 U.S. 470 (2000), Penson v. Ohio, 488 U.S. 75 (1988),

Evitts v. Lucey, 469 U.S. 387 (1985); Rodriquez v. United States, 395

U.S. 327 (1969), and Douglas v. California, 372 U.S. 353 (1963), all of

which guarantee criminal defendants the right to the effective

assistance of counsel on direct appeal, and which establish that

1

prejudice is presumed when an attorney’s deficient performance

deprives a defendant of that appeal. The decision below is not, as

Respondent urges, “bound up in idiosyncratic facts and Wisconsin

appellate procedure law” with limited impact (Opp. at 6), but is

instead grounded in a gravely unsound view of the Fifth and Sixth

Amendment that is inconsistent with this Court’s precedent, and will

have a sweeping adverse effect upon the appellate rights of Wisconsin

citizens.

2. Respondent’s assertion that, despite the unavailability of any

trial transcripts due to counsel’s failure to initiate the appeal,

Petitioner was “afforded the ‘opportunity to appeal’” by mere

reinstatement of his appellate rights (Opp. at 6-10), without more,

elevates form over substance, and ignores the ultimate result of

counsel’s abandonment of Petitioner in failing to timely initiate his

appeal – the loss of a meaningful appeal with the effective assistance

of counsel to which he is constitutionally entitled. For it is due to

counsel’s failure to initiate the appeal that the transcripts of

Petitioner’s trial ultimately became unavailable, as a result of the

court reporters’ destruction of their notes based on the passage of time

2

with no appeal pending.1 Thus, contrary to Respondent’s claim, where

counsel’s “inexcusable” failure to timely initiate an appeal as directed

by Petitioner results in the loss of the entire record of the trial

proceedings, mere reinstatement of an “opportunity to appeal,”

without any record of Petitioner’s trial occurring nearly a quartercentury ago2, deprives a defendant of the constitutional right to a

meaningful appeal and to the effective assistance of counsel on appeal.

3. Respondent also presses the determination of the majority

below that Petitioner is to blame for the lack of a trial record because,

it is claimed, his pro se procedural errors in seeking reinstatement of

his appellate rights lost due to counsel’s ineffectiveness resulted in

destruction of the transcripts. (Opp. at 15; Pet-App. 126-132).

As recognized by the dissent, however, the insufficiency of the

record is not attributable to Petitioner, but rather is imputed to the

1 Wisconsin Supreme Court Rule 72.01(47) requires court reporters to keep their

notes for only 10 years following a court proceeding. Thus, following trial counsel’s failure

to initiate Petitioner’s appeal, and the appellate courts’ subsequent refusal to retroactively

extend the deadline for doing so in response to Petitioner’s pro se pleas, the notes from

Petitioner’s trial were destroyed in 2006. (Pet-App. at 135, 151-152).

2 Respondent attempts to muster a claim that, despite the lack of any transcripts

from Petitioner’s 1996 trial, appellate counsel had a “substantial record to work with,”

consisting of the criminal complaint, docket entries stating witness names, and a

sentencing transcript. (Opp. at 13-14). Plainly none of these documents contain any

information about the evidence introduced at Petitioner’s trial that resulted in his

convictions. As this Court has recognized, a trial is the “paramount event” for determining

a defendant’s guilt or innocence in state criminal proceedings. Herrera v. Collins, 506 U.S.

390, 416, (1993). As no transcripts of the trial proceedings exist, there is no record of the

evidence introduced that resulted in Petitioner’s convictions, and thus the ability to appeal

his convictions is thoroughly thwarted, again due to trial counsel’s ineffectiveness in failing

to initiate his appeal as directed in 1996.

3

government due

to counsel’s ineffectiveness.

See

Coleman

v.

Thompson, 501 U.S. 722, 752 (1991)(finding that the Sixth

Amendment requires responsibility for any procedural default caused

by counsel’s ineffectiveness to be imputed to the State).

In the dissent’s words:

Inexplicably, the majority repeatedly faults Pope for not

ordering the transcripts within the 10 years following his trial.

Majority op., ¶¶17 n.10, 44, 46. Not surprisingly, the majority

neglects to explain how Pope was supposed to identify or track down

the correct court reporter, or pay the substantial fees necessary to

obtain a four-day trial transcript, or know that the court reporter’s

notes would be destroyed 10 years after the trial unless he orders the

transcript, all without the assistance of counsel. His trial counsel’s

failure to fulfill his obligations to Pope, who was constitutionally

entitled to receive the transcript along with the assistance of counsel

to pursue his direct appeal, bears the initial fault for the delays in

this case. The court system’s subsequent failures to recognize Pope’s

constitutional rights to counsel, a direct appeal, and a transcript,

caused the destruction of the trial transcript, not Pope.

Because Pope was not responsible for the unavailability of the

transcripts, he should not bear the consequences of their destruction.

(Pet-App. A at 152-153).

Moreover, as this Court recognized in Garza, “while it is the

defendant’s prerogative whether to appeal, it is not the defendant’s

role to decide what arguments to press. That makes it especially

improper to impose that role upon the defendant simply because his

opportunity to appeal was relinquished by deficient counsel.” (citing

Jones v. Barnes, 463 U.S. 745, 751, 754 (1983)). Garza, 139 S. Ct. at

748. Thus, unlike the Wisconsin Supreme Court’s opinion in this case,

4

in Garza this Court declined to place a “pleading barrier” on a

defendant whose opportunity to appeal should never have been lost,

reiterating that it would be “unfair and ill advised” to require “‘an

indigent, perhaps pro se, defendant to demonstrate that his

hypothetical appeal might have had merit before any advocate has

ever reviewed the record in his case in search of potentially

meritorious grounds for appeal.’” Garza at 748-749 (quoting FloresOrtega, 528 U.S. at 486, and citing Rodriquez, 395 U.S. at 330).

4. Further, Petitioner has never claimed, as Respondent asserts,

that his right to direct appeal “guarantees” that he will prevail on the

merits on appeal, or that he is entitled to “automatic reversal” upon

reinstatement of his lapsed direct appeal rights or whenever a trial

transcript is missing. (Opp. at 7-14). Rather, Petitioner’s claim relied

upon his constitutional right, as determined by this Court, to a

meaningful appeal with the effective assistance of counsel, of which

Petitioner asserted he was deprived due to the unavailability of any

trial transcripts, caused by counsel’s failure to initiate his appeal in a

timely manner.

As a result of counsel’s deficiency, Petitioner was deprived of the

effective assistance of counsel on appeal to which he was entitled, as

5

without any transcript of his trial held a quarter-century ago,

appellate counsel had no trial record from which to determine whether

or not any arguably meritorious issues existed for appeal.

This

deprivation resulted in a denial of Petitioner’s right to appeal,

including a right to the no-merit process prescribed by this Court in

Anders v. California, 386 U.S. 738 (1967).

5. Respondent’s claim that Petitioner “had a presumptively fair,

error-free trial assisted by competent counsel” and that there is a

“strong presumption of reliability in the outcome of the trial” (Opp. at

7, 16), ignores that this Court has held the presumption of reliability

inapplicable where a defendant is actually or constructively denied

the assistance of counsel altogether, either at trial or on appeal.

Flores-Ortega, 528 U.S. at 482-483 (citing United States v. Cronic, 466

U.S. 658, 659 (1984); Penson, 488 U.S. at 88.

This Court has also concluded that where counsel’s deficient

performance results in forfeiture of an appeal itself, a presumption of

prejudice applies, because the “adversary process itself” is rendered

“presumptively unreliable.”

As this Court stated, “Put simply, we

cannot accord any ‘presumption of reliability’ to judicial proceedings

6

that never took place.”

Flores-Ortega, 528 U.S. at 483 (internal

citation omitted).

Here, Petitioner’s convictions stand unreviewed, due to trial

counsel’s ineffectiveness in failing to timely initiate his appeal, and

the resulting unavailability of the trial transcripts, which caused,

according to the Wisconsin Supreme Court, “forfeiture” of Petitioner’s

appeal. (Pet-App. A at 129-130). Such “forfeiture” of the appeal due to

the ineffective assistance of counsel thus renders the proceeding

“presumptively unreliable” and, under Flores-Ortega, warrants a

presumption of prejudice.

6. Finally, despite Petitioner’s conviction by a jury of two

counts of homicide as a party to a crime, as noted by the dissent, “he

nevertheless retains the constitutional and statutory rights our laws

secure.” (Pet-App. A at 136-137)(citing Turner v. Safley, 482 U.S. 78,

84 (1987); Cruz v. Beto, 405 U.S. 319, 321 (1972)). At the expense of

fundamental constitutional rights and in contradiction to this Court’s

precedent,

the

Wisconsin

Supreme

Court’s

decision

upholds

Petitioner’s convictions, unreviewed by any appellate court due to trial

counsel’s ineffectiveness in failing to initiate his appeal. This Court

should accept this case for review.

7

CONCLUSION

Petitioner Robert James Pope, Jr., respectfully requests that

this Court grant certiorari.

Dated this 16th day of June, 2020.

______________________________

Andrea Taylor Cornwall

Assistant State Public Defender

Counsel of Record

WISCONSIN STATE

PUBLIC DEFENDER

735 N. Water Street, Suite 912

Milwaukee, WI 53202-4116

(414) 227-4805

cornwalla@opd.wi.gov

8