Huusko, David G. v. Jenkins, Larry ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2660
D AVID G. H UUSKO,
Petitioner-Appellant,
v.
L ARRY JENKINS, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07-C-0059-C—Barbara B. Crabb, Chief Judge.
A RGUED S EPTEMBER 11, 2008—D ECIDED F EBRUARY 18, 2009
Before E ASTERBROOK, Chief Judge, and P OSNER and
E VANS, Circuit Judges.
E ASTERBROOK, Chief Judge. David Huusko was con-
victed in Wisconsin of armed robbery. Shea Mattice
testified that, when he and his buddy Huusko needed
money to buy drugs, they robbed convenience stores.
The particular robbery in question occurred on May 17,
2000. Mattice testified that he waited in a car while
Huusko went inside to loot the till. A video tape shows
the events in the store. The cashier identified Huusko as
2 No. 07-2660
the robber. Jacob Sieg and his wife Lisa Sieg, who knew
both Huusko and Mattice, identified Huusko as the
robber, relying on the face, hair, and clothing of the
person in the video. The Siegs earlier had identified
Mattice as the robber—and Huusko’s defense was that
Mattice had done the deed—but explained at trial that
they were initially trying to protect Huusko and now
were telling the truth. The jury, which saw the video,
concluded that Huusko had committed the crime and
convicted him.
This federal collateral attack arises from post-verdict
events. Wisconsin combines some aspects of direct and
collateral review by allowing post-judgment, but pre-
appeal, motions to raise matters outside the trial record.
After Huusko filed a motion under Wis. Stat. §974.02contesting the performance of his trial counsel, the state
court appointed Jay Heit to represent him. Heit presented
a good deal of evidence and argument at the post-con-
viction hearing, but the trial judge concluded that
Huusko’s original lawyer had furnished effective assis-
tance. The state’s court of appeals affirmed.
Later Huusko filed a motion under Wis. Stat. §974.06,
the state’s principal form of collateral review. Repre-
sented by a third lawyer, Huusko argued (among other
things) that Heit had furnished ineffective assistance at
the §974.02 hearing by not calling Jacob Sieg as a witness
and exploring whether Sieg had changed his testimony
to reduce the risk of having his probation revoked.
Sieg, who was on probation following a conviction for
burglary, roomed with Mattice part of the time—and, as
No. 07-2660 3
Mattice was wanted on several warrants, this association
violated the terms of Sieg’s probation. Perhaps, Huusko’s
third lawyer suggested, Sieg had changed his tune in
order to keep on the good side of the probation office.
Huusko contended that Heit should have explored this
question as part of his challenge to the work of his
first lawyer, but had failed to do so because of a conflict
of interest: Heit had been Sieg’s lawyer in the prosecu-
tion that ended in the burglary conviction. Because of
this conflict Heit’s service had been ineffective, Huusko
argued. The trial judge and the state’s court of appeals
both disagreed with this contention, Wisconsin v. Huusko,
2006 WI App 223, 296 Wis. 2d 935, 724 N.W.2d 273 (2006),
as did the federal district court. Huusko v. Endicott, 2007
U.S. Dist. L EXIS 37040, 2007 U.S. Dist. L EXIS 51755
(W.D. Wis. 2007).
Logically the first issue on this appeal is whether a
challenge to Heit’s performance is within the scope of
federal collateral review. “The ineffectiveness or incom-
petence of counsel during Federal or State collateral post-
conviction proceedings shall not be a ground for relief
in a proceeding arising under section 2254.” 28 U.S.C.
§2254(i). The proceeding under Wis. Stat. §974.02 was
“post-conviction”, but was it “collateral”? The parties did
not address this question in the district court or their
appellate briefs, and although we are entitled to over-
look the state’s forfeiture of a procedural defense on
collateral review, see Day v. McDonough, 547 U.S. 198(2006), this is not an appropriate occasion to use that
power. Section 974.02 sets up a procedure that is neither
fish nor fowl, and it is best to wait for an adversarial
4 No. 07-2660
presentation, in a case where the answer matters, before
addressing whether §2254(i) applies.
Wisconsin itself calls all forms of collateral review “part
of the original criminal action” (§974.06(2)), although
for federal purposes the post-appeal proceeding under
§974.06 is “collateral.” Federal law classifies a state pro-
ceeding for the purpose of §2254; a state cannot make
all collateral review “direct,” and thus reset the time
limits and other provisions of §2254, by mere say-so.
See Teas v. Endicott, 494 F.3d 580 (7th Cir. 2007).
Normally a hearing held to inquire into the effective-
ness of trial counsel would be a collateral proceeding in
federal court, see Massaro v. United States, 538 U.S. 500(2003), but it is not unheard of for a district court to
conduct such an inquiry before resolving a motion for a
new trial under Fed. R. Crim. P. 33, a step that is part
of direct rather than collateral review in federal practice.
See Kitchen v. United States, 227 F.3d 1014 (7th Cir. 2000).
Matters that precede the direct appeal may not be “collat-
eral” for federal purposes, even though they present
issues normally entertained on collateral attack—but
if a §974.02 proceeding is deemed non-collateral, then
Wisconsin’s prisoners will enjoy a right to effective assis-
tance of counsel in pursuing ineffective-assistance con-
tentions, even though prisoners in Indiana, Illinois, and
most other states do not enjoy such a right. A desire for
consistent rules in federal constitutional adjudication
supports calling a §974.02 proceeding “collateral.” So
classification may be difficult, and as it does not matter
today the subject may be postponed—though we hope
No. 07-2660 5
that, next time, counsel will address rather than over-
look the significance of the direct/collateral distinction
under §2254(i).
The reason §2254(i) does not matter today is that Heit did
not have a conflict of interest. Huusko starts with the
assumption that a lawyer owes a duty to a former client.
He uses this duty to establish the conflict, and then he
invokes Cuyler v. Sullivan, 446 U.S. 335 (1980), for the
proposition that collateral relief is automatic, without
regard to prejudice, when trial counsel labors under a
conflict that has been concealed from the judge and the
accused. (Heit was not trial counsel, but we won’t men-
tion that detail again.) Huusko’s obstacle is this holding
of the state’s appellate court in the §974.06 proceeding:
Finally, Huusko argues that Heit had a conflict of
interest that prevented him from calling Sieg as a
witness at his initial postconviction hearing. Heit
represented Sieg in the proceedings that led to
Sieg being placed on probation. At the post-
conviction hearing, Heit testified that under the
terms of the state public defender assignment, his
representation of Sieg ended when Sieg was sen-
tenced. Heit testified that he had no obligation to
protect Sieg from the consequences of any proba-
tion violation. While he had a continuing obliga-
tion to maintain confidentiality, he had no privi-
leged or confidential information that might
have affected Huusko’s case. Heit’s failure to
inquire about Sieg’s alleged probation violations
was based on his judgment that the violations
6 No. 07-2660
were not relevant to Huusko’s case rather than out
of any continuing duty to Sieg. Huusko has not
established any actual conflict of interest.
2006 WI App 223 at ¶12. Huusko maintains that the
state court’s decision is an unreasonable application of
federal law, the standard for relief under 28 U.S.C.
§2254(d). But we do not read it as any application of fed-
eral law; the court determined that Heit did not owe a
continuing duty to Sieg.
What duties lawyers owe their former clients depends
on the law of the jurisdiction where the representation
occurred. When representing a client in Wisconsin, a
lawyer must follow Wisconsin’s rule. When representing
a client in federal court, a lawyer must follow federal
rules. Most federal courts use the ethical rules of the
states in which they sit, though a few (the Northern
District of Illinois being a good example) have elaborate
federal rules of practice. Things might get complex if
Heit had defended Sieg in Wisconsin, and the second
prosecution (where Sieg was a witness) had been in
federal court; then two sets of ethical rules could have
come into play, with a potential for inconsistency. But both
the prosecution in which Heit represented Sieg, and the
post-conviction proceedings in Huusko’s case, were in
Wisconsin’s state courts, so Heit’s duties depended
entirely on Wisconsin law.
Wisconsin believes—as the decision on post-conviction
review in Huusko’s case shows—that lawyers must
maintain a former client’s confidences but do not have
a duty to protect a former client’s current legal interests.
No. 07-2660 7
This means that Heit ethically could have called Sieg to
the stand in the §974.02 proceeding and asked questions
that would have exposed Sieg to a risk that his probation
would be revoked.
Huusko’s latest lawyers do not disagree with this
understanding of Wisconsin law so much as they ignore
it. They do not cite any provision of the code of conduct
governing practice in Wisconsin or any judicial decision
interpreting those requirements. They cite many decisions
of federal appellate courts in cases that may or may not
be analogous. But they do not cite a single state decision
(in Wisconsin or any other state with the same or
similar rules of conduct) or try to show that Wisconsin’s
appellate judiciary misunderstood attorneys’ ethical
duties under Wisconsin law. Not that it would have
done counsel any good to make such an argument. For a
federal court cannot issue a writ of habeas corpus that
rests on a belief that a state court has misunderstood or
misapplied state law. See, e.g., Waddington v. Sarausad,
No. 07-772 (U.S. Jan. 21, 2009), slip op. 12 n.5; Gilmore v.
Taylor, 508 U.S. 333, 342 (1993); Estelle v. McGuire, 502
U.S. 62 (1991). Yet without a duty founded in state
law, there is no conflict and no constitutional issue.
A FFIRMED
2-18-09