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  • May 10, 2024

    Attorney’s Multiple Representations of Defendant Not Enough for Habeas Relief

    The fact that a criminal defendant’s lawyer previously presided over his preliminary hearing does not entitle the defendant to habeas corpus relief, the U.S. Court of Appeals for the Seventh Circuit has ruled.

    Jeff M. Brown

    A White Man In A Dark Suit And White Shirt And A Reddish-Puprle Silk Seated At A Desk, Writing With A Fountain Pen, With A Gavel To His Right And A Brass Lady Justice Sculpture To His Left

    May 10, 2024 – The fact that a criminal defendant’s lawyer previously presided over his preliminary hearing does not entitle the defendant to habeas corpus relief, the U.S. Court of Appeals for the Seventh Circuit has ruled in Henyard v. Eplett, No. 22-3086 (April 26, 2024). 

    In December 2016, the Kenosha County District Attorney charged Keith Henyard with eight felony drug counts.

    On December 28, 2016, Henyard appeared in a preliminary hearing before Court Commissioner Frank Parise. Parise practices criminal law in Kenosha County but in December 2016 was periodically filling in as a court commissioner.

    During the December 28 hearing, Henyard waived a full hearing, and Parise found probable cause to bind Henyard over for trial.

    New Attorney

    Several months later, Henyard fired his attorney and hired Parise.

    Parise would later testify that he didn’t recognize Henyard and didn’t remember presiding over Henyard’s preliminary hearing when Henyard hired him. Parise also testified that he ran a conflicts check but missed the prior interaction with Henyard.

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Parise appeared with Henyard at a pre-trial hearing in May 2017, and the circuit court set a trial date. Nobody mentioned the fact that Parise had served as the court commissioner at Henyard’s preliminary hearing.

    Plea Bargain

    Parise eventually negotiated a plea bargain for Henyard. Henyard pled guilty to four counts, with the court dismissing the other four counts but reading them in for consideration at sentencing.

    When Henyard pled guilty, he said that he was satisfied with Parise’s representation.

    The circuit court sentenced Henyard to 12 years in prison and five years of extended supervision on one count and six years of probation on the other three counts.

    Post-conviction Relief

    Henyard petitioned the circuit court for post-conviction relief.

    He moved to withdraw his guilty plea, on the grounds that Parise violated Wisconsin Supreme Court Rule (SCR) 20:1.12(a) by representing him after having presided over his preliminary hearing.

    SCR 20:1.12(a) prohibits a lawyer from representing a person in a matter in which the lawyer substantially and personally participated “as a judge or other adjudicative officer … or as an arbitrator, mediator or other 3rd-party neutral.”

    Parise testified that Henyard hired him to negotiate a plea bargain, which he’d done.

    Henyard’s attorney argued that the mere fact Parise had presided over Henyard’s preliminary trial created an actual conflict of interest.

    The circuit court determined that Henyard knew when he hired Parise that Parise was the person who’d presided over his preliminary hearing.

    The circuit court concluded that Henyard failed to prove that Parise’s representation posed an actual or serious potential conflict of interest.

    State, Federal Appeals

    Henyard appealed, and the Wisconsin Court of Appeals affirmed the circuit court’s decision in a split decision.

    After the Wisconsin Supreme Court denied Henyard’s petition for appeal, he filed a habeas corpus petition with the U.S. District Court for the Eastern District of Wisconsin under 28 U.S.C. section 2254.

    The district court denied Henyard’s petition, and he appealed to the U.S. Court of Appeals for the Seventh Circuit.

    High Hurdle

    Judge Amy St. Eve began her opinion for a three-judge panel by explaining that to prevail on his appeal, Henyard must show that the Wisconsin Court of Appeals’ decision was either contrary to or an unreasonable application of clearly established federal law.

    St. Eve pointed out that, under Seventh Circuit caselaw, that hurdle was a high one.

    “We must defer to state court decisions – the decision from the last state court to rule on the merits of the petitioner’s claim … if ‘the specific reasons given by the state court … are reasonable,” Judge St. Eve wrote.

    Adverse Effect?

    Judge St. Eve explained that the U.S. Supreme Court has clearly established that a petitioner complaining that multiple representations by his or her attorney violated the Sixth Amendment must show that the attorney actively represented conflicting interests in a way that adversely affected his or her performance.

    “Nothing in that body of law conflicts with the rule the Wisconsin Court of Appeals applied when considering Henyard’s petition for post-conviction relief: that Henyard must show Parise labored under an active conflict of interest that adversely affected his representation,” St. Eve wrote.

    “The Supreme Court has never held that, when a defendant objects to an alleged conflict of interest after the conclusion of proceedings, both prejudice and adverse effect can be presumed.”

    Judge St. Eve also concluded that the Wisconsin Court of Appeals hadn’t unreasonably applied the relevant rule to Henyard.

    “The court did not require Henyard to show prejudice, only faulting him for failing to show both that Parise actively labored under a conflict of interest and that the conflict adversely affected his performance,” St. Eve wrote.

    Ethical Violation Not Enough

    Henyard argued that the fact Parise violated SCR 20:1.12(a) was enough to show an actual conflict.

    But Judge St. Eve concluded that Supreme Court precedent didn’t support that argument. She also reasoned that, even if Henyard could show a reasonable conflict, he’d failed to point to any adverse effect caused by Parise’s representation.

    “He does not argue, for example, that he pleaded guilty because of Parise’s advice, when he would have otherwise gone to trial,” St. Eve wrote. “At the post-conviction hearing before the circuit court, Henyard’s attorney admitted to being unable to identify any adverse effect.”

    Judge St. Eve also noted that the Wisconsin Court of Appeals found that Parise was unaware of the conflict.

    “Henyard must show an adverse effect on Parise’s specific performance as Henyard’s attorney,” St. Eve wrote. “Any general adverse effect will not do.”

    The Seventh Circuit affirmed the district court’s ruling.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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