Man’s ineffective assistance of counsel claim fails in 7th Circuit

August 30, 2016

The habeas corpus petition by a prisoner at the Miami Correctional Facility was correctly denied in federal court, the 7th Circuit Court of Appeals held Monday. The man argued his appellate counsel provided ineffective assistance of counsel regarding his habitual offender adjudication.

Charles Walker was convicted of robbery and adjudicated as a habitual offender. He was sentenced to 40 years in prison, 20 of which were attributable to his habitual offender status. At his trial, the state provided evidence of three prior felonies, but failed to offer evidence of the date of when a 1989 burglary occurred. Under the habitual offender statute in place in 2006 when Walker was charged, to be adjudicated, the person had to have been convicted of two prior unrelated felonies, with the second felony being committed after the commission of and sentence of the first crime.

Walker appealed his conviction and habitual offender adjudication, which the Court of Appeals affirmed in 2007. He then sought post-conviction relief, which was denied by the trial court and COA. This led to Walker filing a federal habeas corpus petition, challenging the effectiveness of the assistance of his appellate counsel, Don Pagos. The federal court denied the writ.

Walker maintained that Pagos performed deficiently in failing to notice or challenge the absence of the commission date for the 1989 crime. Had he raised the issue on appeal, Walker contended that the COA would have reversed the habitual offender finding, and because of double jeopardy, he would have had the 20-year habitual offender sentence vacated.

But Walker relied on outdated law in making his argument, the 7th Circuit noted. Caselaw at the time of Walker’s direct appeal would have remanded the matter to allow for the prosecutor to supply the missing evidence, not vacate the habitual offender finding. And double jeopardy would not have barred the COA from remanding his case to introduce the commission date of the 1989 burglary, Chief Judge Diane Wood wrote.

The judges found Walker was not prejudiced by Pagos’ trial strategy, although Wood noted the issue was complicated by Pagos’ death before the COA considered Walker’s post-conviction petition. The COA reasoned that Pagos was familiar with Walker’s criminal history and knew he had enough prior convictions to support the habitual offender finding. The court also suggested that Pagos may have overlooked the missing date. The 7th Circuit found it’s plausible that Pagos declined to raise the issue because he believed there was no point in doing so.

“The Court of Appeals would simply have affirmed based on the evidence from which the commission date could be inferred, or reopened the case for the state to supply the missing documentation,” Wood wrote. “It is also plausible that he did not raise the issue because it was not obvious, and he raised other issues that he considered more promising. We find nothing unreasonable, in the sense that (Antiterrorism and Effective Death Penalty Act of 1996) uses the term, in the state appellate court’s assessment of Pagos’s performance.”

The case is Charles Walker v. Kathy Griffin, superintendent, Miami Correctional Facility, 15-2147.


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