Cases & Deals

Prisoner obtains significant precedential victory in Seventh Circuit appeal

Clients Confidential client

Jones Day obtained a significant victory for a pro bono client in a Seventh Circuit appeal, resulting in a precedential decision. The client struck a mid-trial deal with a Wisconsin prosecutor to plead guilty to certain criminal offenses in exchange for the prosecutor’s agreement to recommend a six-year prison sentence followed by eight years of extended supervision. At sentencing, however, the prosecutor told the trial court that, “in hindsight, I so wish we would have allowed this to proceed through to the end of trial and let the jury make their verdict because then I would have had four counts on the table today.” The trial court thereafter sentenced the client to nine years’ imprisonment—three more than the parties agreed to recommend in the plea agreement—and seven years of extended supervision, and entered judgment in July 2017.

The client sought to appeal his sentence, alleging, among other things, that the prosecutor breached the plea agreement. Under Wisconsin law, a defendant must first pursue post-conviction relief before filing a direct appeal. The client did so by filing his notice of intent to pursue post-conviction relief just five days after sentencing. But he soon encountered extraordinary delays as his appointed counsel filed multiple requests for extension of time to file the client’s post-conviction motion, each of which the Wisconsin Court of Appeals granted. By the time the client’s federal habeas case reached the Seventh Circuit, the Wisconsin Court of Appeals had granted 12 such requests, stalling the client’s case for over four years. The client thus filed a federal habeas petition raising the same sentencing challenges he desired to raise in state court. The district court recognized the “inordinate” delay the client faced, but, emphasizing the exhaustion requirement in 28 U.S.C. § 2254(b), dismissed his petition, “without prejudice,” to give the Wisconsin courts a final chance to act. The client appealed to the Seventh Circuit, which appointed Jones Day to represent him.

The Seventh Circuit unanimously reversed in a published decision (10 F.4th 715), on the ground that the exhaustion exception for “where state court remedies are unavailable or ineffective” applied. The court first rejected the State’s argument that it lacked appellate jurisdiction because the district court’s direction to the client to return to state court and then (if necessary) refile his federal habeas petition was not final. The court found finality due to the futility of that exercise, and Judge Easterbrook in a concurring opinion would have gone farther (as Jones Day argued in the alternative), rejecting two circuit precedents that complicated the jurisdictional question for prisoners in the client’s position.

The Seventh Circuit further recognized that “the delay in [the client’s] case is extreme” and “should have sounded an alarm bell within the Wisconsin courts, the public defender’s office, and even the Attorney General’s office.” Because the client’s case “is stuck in park,” the Seventh Circuit was “left with the impression that for [the client], justice delayed has become justice denied.” And the court emphasized that “[w]hat makes all this so tragic is that the state itself is responsible for the delays.” “Wisconsin courts,” the Seventh Circuit concluded, “need to fix the systemic deficiency that has resulted in how [the client’s] case has been treated[.]” The Seventh Circuit thus vacated the district court’s judgment and remanded with instructions for the district court to review the client’s habeas petition “without delay.”

Two days after the Seventh Circuit’s decision, the district court notified Jones Day, the State, and the public defender’s office that it “intend[ed] to move this matter with special urgency once I get the mandate.” In the meantime, however, the State and the client negotiated a modification of the client’s sentence, under which he would be sentenced to six years’ confinement followed by five years of extended supervised release. The state trial court approved the modification, which meant the client would be released in early 2022—three years earlier than under his original sentence, and subject to three fewer years of supervised release than under his original plea deal. When the client accordingly moved to voluntarily dismiss his federal habeas petition, the State responded by moving the Seventh Circuit to vacate its decision and judgment as moot. Still representing the client, Jones Day opposed that motion. The Seventh Circuit summarily denied the State’s motion and issued its mandate. It also awarded costs to the client, which Jones Day successfully recovered from the State. The client was released in February 2022.

Carter v. Buesgen, 10 F.4th 715 (7th Cir.)